Citation Nr: 0809858 Decision Date: 03/25/08 Archive Date: 04/09/08 DOCKET NO. 97-32 924 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for a bilateral foot disability, including pes planus, metatarsalgia and plantar fasciitis. 3. Entitlement to service connection for a bilateral ankle disability. 4. Entitlement to service connection for a right thumb disability. 5. Entitlement to service connection for low back pain, including as secondary to service-connected right and left knee disabilities or post-traumatic stress disorder (PTSD). 6. Entitlement to service connection for sleep apnea, including as secondary to service-connected PTSD. 7. Entitlement to an initial compensable evaluation for hemorrhoids. 8. Entitlement to an effective date prior to August 31, 2001, for the assignment of a 20 percent evaluation for hemorrhoids. 9. Entitlement to a higher initial evaluation for PTSD, evaluated as 10 percent disabling prior to October 24, 2001 and as 30 percent disabling from October 24, 2001. 10. Entitlement to a temporary total evaluation under 38 C.F.R. § 4.30, based on right knee surgery performed in October 1999. WITNESSES AT HEARINGS ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD L. J. N. Driever, Counsel INTRODUCTION The veteran had active service from August 1990 to July 1996. These claims come before the Board of Veterans' Appeals (Board) on appeal of July 1997, October 1998, December 1999, August 2002 and March 2003 rating decisions of the Department of Veterans Affairs (VA) Medical and Regional Office Center in Wilmington, Delaware, and the VA Regional Office (RO) in Huntington, West Virginia. The veteran's appeal initially included claims of entitlement to service connection for bilateral knee disabilities and an initial compensable evaluation for a right knee disability. However, in rating decisions dated March 1998 and December 1999, the RO granted the claims for service connection. Moreover, in a rating decision dated December 1999, the RO partially granted the veteran's claim for a higher initial evaluation for a right knee disability by increasing the evaluation assigned that disability to 10 percent. Thereafter, in a written statement received in January 2000, the veteran indicated that he was satisfied with the RO's action in this regard. The claims for service connection for bilateral knee disability and an initial compensable evaluation for a right knee disability are thus not now before the Board for appellate review. The veteran testified in support of the claims now on appeal at hearings held at the RO before a Hearing Officer and a Decision Review Officer in April 2000 and February 2002 and in Washington D.C. before the undersigned in November 2002 and January 2008. In July 2004, the Board remanded these claims to the RO for additional action. The Board addresses the claims of entitlement to service connection for a bilateral foot disability, including pes planus, metatarsalgia and plantar fasciitis, low back pain, including as secondary to service-connected right and left knee disabilities or PTSD, and sleep apnea, including as secondary to service-connected PTSD, and entitlement to an initial evaluation in excess of 10 percent for PTSD in the Remand portion of this decision and REMANDS these claims to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. On April 13, 1999, prior to the promulgation of a decision in this case, the Board received notification from the veteran requesting withdrawal of his appeal on the claims of entitlement to service connection for a right thumb disability and entitlement to an initial compensable evaluation for hemorrhoids. 2. Hypertension is not related to the veteran's active service and did not manifest to a compensable degree within a year of his discharge therefrom. 3. The veteran does not currently have a bilateral ankle disability. 4. The RO received the veteran's claim for an increased evaluation for hemorrhoids on October 6, 2001. 5. During the year preceding October 6, 2001, it was factually ascertainable that the veteran's hemorrhoids were 20 percent disabling. 6. Surgery performed on the veteran's service-connected right knee disability in October 1999 did not necessitate at least one month of convalescence or cause severe postoperative residuals. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal on the claim of entitlement to service connection for a right thumb disability have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2007). 2. The criteria for withdrawal of a substantive appeal on the claim of entitlement to an initial compensable evaluation for hemorrhoids have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2007). 3. Hypertension was not incurred in or aggravated by service and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5102, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2007). 4. A bilateral ankle disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5102, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2007). 5. The criteria for entitlement to an effective date of October 6, 2000, for the assignment of a 20 percent evaluation for hemorrhoids, have been met. 38 U.S.C.A. §§ 5101, 5102, 5103, 5103A, 5110(a) (West 2002); 38 C.F.R. §§ 3.1, 3.155, 3.157, 3.159, 3.400 (2007). 6. The criteria for entitlement to a temporary total evaluation under 38 C.F.R. § 4.30, based on right knee surgery performed in October 1999, have not been met. 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 4.30 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection - Right Thumb Disability & Higher Initial Evaluation - Hemorrhoids Under 38 U.S.C.A. § 7105 (2007), the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202 (2007). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204 (2007). On April 13, 1999, prior to the promulgation of a decision in this case, the Board received notification from the veteran requesting withdrawal of his appeal on the claims of entitlement to service connection for a right thumb disability and entitlement to an initial compensable evaluation for hemorrhoids. Thus, with regard to such claims, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal on such claims and they must be dismissed. II. Service Connection - Hypertension & Bilateral Ankle Disability, Earlier Effective Date - Increased Evaluation for Hemorrhoids & Temporary Total Evaluation under 38 C.F.R. § 4.30 A. VA's Duties to Notify and Assist On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002), became law. Regulations implementing the VCAA were then published at 66 Fed. Reg. 45,620, 45,630-32 (August 29, 2001) and codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2007). The VCAA and its implementing regulations are applicable to this appeal. The VCAA and its implementing regulations provide, in part, that VA will notify the claimant and his representative, if any, of the information and medical or lay evidence not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and his representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf. They also require VA to assist a claimant in obtaining evidence necessary to substantiate a claim, but such assistance is not required if there is no reasonable possibility that such assistance would aid in substantiating the claim. The United States Court of Appeals for Veterans Claims (Court) has mandated that VA ensure strict compliance with the provisions of the VCAA. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). In this case, with regard to the claims being decided, VA provided the veteran adequate notice and assistance such that the Board's decision to proceed in adjudicating these claims does not prejudice the veteran in the disposition thereof. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). 1. Duty to Notify The Court has indicated that notice under the VCAA must be given prior to an initial unfavorable decision by the agency of original jurisdiction. In Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 119-20 (2004), the Court also indicated that the VCAA requires VA to provide notice, consistent with the requirements of 38 U.S.C.A. § 5103(A), 38 C.F.R. § 3.159(b), and Quartuccio, that informs 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. In what can be considered a fourth element of the requisite notice, the Court further held that, under 38 C.F.R. § 3.159(b), VA must request the claimant to provide any evidence in his possession that pertains to the claim. Id. at 120-21. The Court clarified that VA's regulations implementing amended section 5103(a) apply to cases pending before VA on November 9, 2000, even if the RO decision was issued before that date, and that, where notice was not mandated at the time of the initial RO decision, it was not error to provide remedial notice after such initial decision. Id. at 120, 122-24. On March 3, 2006, the Court held that the aforementioned notice requirements apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of disability; (3) a connection between service and disability; (4) degree of disability; and (5) effective date of disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006). The Court further held that notice under the VCAA must inform the claimant that, if the RO grants his service connection claim, it will then assign such an award a disability rating and an effective date. Id. at 486. a. Timing 1. Service Connection & Temporary Total Evaluation The RO provided the veteran VCAA notice on his claims for service connection and a temporary total evaluation by letters dated August 2004, December 2004 and May 2005, after initially deciding those claims in rating decisions dated July 1997, October 1998 and December 1999. Given that VCAA notice was not mandated at the time of these decisions, the RO did not err by providing remedial notice. Rather, the timing of such notice reflects compliance with the requirements of the law as found by the Court in Pelegrini II. 2. Earlier Effective Date The RO provided the veteran VCAA notice on his earlier effective date claim by letter dated in May 2005, after initially deciding that claim in a rating decision dated August 2002. The timing of such notice does not reflect compliance with the requirements of the law as found by the Court in Pelegrini II. However, for the reasons that follow, this timing defect constitutes harmless error. First, as explained below, the notice letter satisfies the content requirements of the VCAA. Second, in Pelegrini II, the Court recognized the need for, and the validity of, notification sent after the initial decision in cases where such notice was not mandated until after that initial decision had been made. Although, in this case, the VCAA was already in effect at the time the RO initially decided the veteran's claim, the only way that VA could now provide notice prior to initial adjudication would be to vacate all prior adjudications and to nullify the notice of disagreement and substantive appeal that the veteran filed to perfect his appeal to the Board. This would be an absurd result, forcing the veteran to begin the appellate process anew. Third, in reviewing determinations on appeal, the Board is required to review the evidence of record on a de novo basis without providing any deference to the RO's prior decision. As such, the veteran is in no way prejudiced by having been provided notice after the initial RO decision. Rather, VA afforded him the appropriate opportunity to identify or submit additional evidence prior to the RO's subsequent adjudication of his claim and the Board's consideration of his appeal. With regard to the duty to notify, the VCAA simply requires that VA give a claimant an opportunity to submit information and evidence in support of his claim. Once this has been accomplished, all due process concerns have been satisfied. Bernard, 4 Vet. App. at 384; Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (2007) (harmless error). b. Content The content of the aforementioned notice letters considered in conjunction with the content of a letter the RO sent to the veteran in May 2006 reflects compliance with the requirements of the law as found by the Court in Pelegrini II and Dingess/Hartman. Therein, the RO acknowledged the claims being decided, informed him of the evidence necessary to support those claims, identified the type of evidence that would best do so, notified him of the VCAA and VA's duty to assist and indicated that it was developing his claims pursuant to that duty. The RO also provided the veteran all necessary information on disability evaluations and effective dates. As well, the RO identified the evidence it had received in support of the veteran's claims and the evidence it was responsible for securing. The RO noted that it would make reasonable efforts to assist the veteran in obtaining all outstanding evidence provided he identified the source(s) thereof, but that, ultimately, it was the veteran's responsibility to ensure VA's receipt of all requested evidence. The RO advised the veteran to sign the enclosed forms authorizing the release of his treatment records if he wished VA to obtain them on his behalf. The RO also advised the veteran to identify or send directly to VA all pertinent evidence he had in his possession. 2. Duty to Assist The RO made reasonable efforts to identify and obtain relevant records in support of the veteran's claims. U.S.C.A. § 5103A(a), (b), (c) (West 2002). First, the RO endeavored to secure and associate with the claims file all evidence the veteran identified as being pertinent to those claims, including service medical records and post-service VA and private treatment records. Second, the RO conducted medical inquiry in an effort to substantiate the veteran's claims for service connection by affording the veteran VA medical examinations, during which VA examiners addressed the presence and etiology of the veteran's hypertension and alleged bilateral ankle disorder. The RO also requested a medical expert opinion on the question of the etiology of the veteran's hypertension. The RO did not conduct medical inquiry in support of the veteran's claims for an earlier effective date and temporary total evaluation under 38 C.F.R. § 4.30 because the claims file includes all medical information necessary to decide these claims. Under the facts of this case, "the record has been fully developed," and "it is difficult to discern what additional guidance VA could have provided to the veteran regarding what additional evidence he should submit to substantiate his claim[s]." Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); see also Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the claimant). B. Analysis of Claims 1. Service Connection The veteran claims entitlement to service connection for hypertension and a bilateral ankle disability. Service connection may be granted for disability resulting from injury or disease incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007). Subsequent manifestations of a chronic disease in service, however remote, are to be service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be presumed for cardiovascular-renal disease, including hypertension, and arthritis if it is shown that the veteran served continuously for 90 days or more during a period of war or during peacetime after December 31, 1946, and manifested one of these conditions to a degree of 10 percent within one year from the date of discharge with no evidence of record establishing otherwise. 38 U.S.C.A. §§ 1101, 1112(a), 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2007). In order to prevail on the issue of service connection on the merits, there must be medical evidence of a current disability, see Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in- service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). a. Hypertension According to transcripts of the veteran's and his spouse's hearing testimony and the veteran's written statements, his hypertension manifested either in service, possibly secondary to documented chest pain, or shortly thereafter. He indicates that he rarely sought medical treatment in service and when he did, no doctor, particularly, a medical corpsman with limited experience, knew to look for high blood pressure. He further indicates that doctors first became concerned with his blood pressure in mid December 1997, but did not inform the veteran of his high blood pressure readings or schedule a follow-up examination in response. In support of this claim, the veteran has submitted copies of articles showing that an individual may be considered borderline hypertensive when he has diastolic blood pressure readings between 85 and 89. The veteran points out that, on more than one occasion in 1995 and 1996, while in service, he had such readings. VA and private treatment records dated since December 1997, a June 1999 letter from Wallace Johnson, M.D., and a report of VA examination conducted in August 2004 confirm that the veteran currently has hypertension. The question is thus whether such disease is related to service or manifested to a compensable degree within a year of the veteran's discharge therefrom. According to the veteran's service medical records, the veteran complained of chest pain during service, but was not diagnosed with hypertension. As alleged, however, during in- service treatment visits in September 1992, October 1992, November 1992, March 1995, August 1995 and June 1996, examiners recorded blood pressure readings of 124/88, 130/90, 130/84, 124/90, 124/94, 134/90, 112/88, 124/88 and 122/86. Since December 1997, more than a year after discharge from service, medical professionals have noted high blood pressure readings and diagnosed the veteran with hypertension. Two physicians have addressed the onset of this disease. In August 2004, a VA examiner found that it was not likely that the veteran had hypertension in service. He based this finding on service medical records showing two elevated blood pressure readings, post-service medical records showing symptoms of hypertension in December 1997 and a diagnosis of hypertension in 1998, and information from the Joint National Committee on Hypertension defining hypertensive as blood pressure of 140/90 or greater over a period of three to seven days. In October 2006, a VA Chief of Cardiology found that the veteran's hypertensive vascular disease did not have its clinical onset in service. He based this finding on in- service evidence of prehypertension, which is not a disease category and might not develop into hypertension provided the individual modifies his lifestyle. The Chief of Cardiology also found that it was not likely that the veteran had hypertension to a compensable degree within a year of his discharge from service. He based this finding on the absence of documented hypertension (an average of two or more properly measured, seated blood pressure readings during each of two more office visits) within a year of the veteran's discharge. The veteran has not submitted a medical opinion refuting those of the VA examiner and VA Chief of Cardiology. As noted above, to prevail in a claim for service connection, the veteran must submit competent evidence establishing that he has a current disability resulting from service. In this case, the veteran's assertions represent the only evidence of record linking his hypertension to service or establishing that it manifested to a compensable degree within a year of discharge. The veteran's assertions in this regard are insufficient to establish the nexus element of a service connection claim as the record does not reflect that the veteran possesses a recognized degree of medical knowledge to diagnose a medical condition. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992) (holding that laypersons are not competent to offer medical opinions). In the absence of competent evidence establishing that the veteran's hypertension is related to service or manifested to a compensable degree within a year of his discharge from service, the Board concludes that such disease was not incurred in or aggravated by service and may not be presumed to have been so incurred. The evidence is not in relative equipoise; therefore, the veteran may not be afforded the benefit of the doubt in the resolution of this claim. Rather, as a preponderance of the evidence is against such claim, it must be denied. b. Bilateral Ankle Disability According to transcripts of the veteran's and his spouse's hearing testimony and the veteran's written statements, he has a current bilateral ankle disability that is related to documented in-service ankle complaints. He indicates that, since he first injured his ankles in service in 1995, he has continued to experience bilateral ankle pain. In support of this claim, the veteran has submitted written statements of family members, fellow servicemen/friends, and his spouse, which indicate that the veteran had foot/ankle problems in and after service. These statements also indicate that the veteran was the type of Marine who was not likely to whine about or seek treatment for his medical problems. According to the veteran's service medical records, the veteran twice sought treatment for ankle problems in service. In March 1995, he reported left ankle pain and an examiner diagnosed acute Achilles tendonitis. Later that month, another examiner noted that the condition was resolving. On separation examination conducted in June 1996, the veteran reported swollen and painful joints and foot trouble. He also reported a history of a swollen left ankle. The examiner noted no clinical abnormalities of the feet or lower extremities. Since discharge, the veteran has sought VA and private treatment for various medical complaints, including related to the ankles, and undergone VA examinations. During treatment visits dated since 2001 and VA examinations conducted since 1996, however, no medical professional has diagnosed an ankle disorder. More specifically, during a VA joints examination conducted in December 1996, an examiner noted no ankle abnormalities, but diagnosed status post ligament damage of the ankles. X- rays later revealed normal ankles. In March 1997 and July 2001, during VA outpatient treatment visits, the veteran reported ankle pain, mostly on the right. The physicians did not objectively confirm such pain, one noting "right ankle pain by history," and failed to diagnose an ankle disorder. In February 2000, a private physician treated the veteran for right ankle pain with an injection, diagnosed right sinus tarsi syndrome, and prescribed orthotics. In March 2000, the same physician noted that the syndrome was resolving. During a VA examination conducted in August 2004, a VA examiner indicated that he saw no evidence of an ankle disorder and that the problems the veteran had with his left ankle in service had resolved. The veteran's assertions in this case represent the only evidence of record diagnosing a current bilateral ankle disorder. As previously indicated, the veteran's assertions in this regard are insufficient to establish the current disability element of a service connection claim. Espiritu v. Derwinski, 2 Vet. App. at 494-95 In the absence of competent evidence establishing that the veteran currently has a bilateral ankle disability, the Board concludes that such disability was not incurred in or aggravated by service. The evidence is not in relative equipoise; therefore, the veteran may not be afforded the benefit of the doubt in the resolution of this claim. Rather, as a preponderance of the evidence is against such claim, it must be denied. 2. Earlier Effective Date Under the laws administered by VA, a specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual. 38 U.S.C.A. § 5101(a) (West 2002); 38 C.F.R. § 3.151(a) (2007). The effective date of an increase in disability compensation is the earliest date as of which it is factually ascertainable that an increase in disability has occurred if a claim is received within one year of such date. Otherwise, the effective date is the date of receipt of the claim. 38 C.F.R. § 3.400(o)(2) (2007); see also Harper v. Brown, 10 Vet. App. 125, 126-127 (1997) (holding that 38 U.S.C.A. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2) are applicable only where an increase in disability precedes a claim for an increased disability rating; otherwise the general rule of 38 C.F.R. § 3.400(o)(1) applies). Based on the aforementioned law and regulations, there are three possible effective dates that may be assigned the 20 percent evaluation at issue in this case, depending on the facts: (1) if the increase in disability occurred after the claim was filed, the date that the increase was shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1)); (2) if the increase in disability preceded the claim by a year or less, the date that the increase was shown to have occurred (date increase was factually ascertainable) (38 C.F.R. § 3.400(o)(2)); and (3) if the increase in disability preceded the claim by more than a year, the date that the claim was received (date of claim) (38 C.F.R. § 3.400(o)(2)). Harper, 10 Vet App at 126. Determining the appropriate effective date to be assigned the 20 percent evaluation thus involves analyzing when the claim for an increased evaluation for hemorrhoids was received and, to the extent possible, when the increase in disability actually occurred. A "claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p) (2007); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication indicating an intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a) (2007); Servello, 3 Vet. App. at 199 (holding that 38 C.F.R. § 3.155(a) does not contain the word "specifically," and that making such precision a prerequisite to acceptance of a communication as an informal claim would contravene judicial precedents and public policies underlying the statutory scheme). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Upon receipt of an informal claim, if a formal claim has not been filed, the RO will forward an application form to the claimant for execution. If the RO receives a complete application from the claimant within one year from the date it was sent, the RO will consider it filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (2007). A report of examination or hospitalization that meets certain criteria will be accepted as an informal claim for an increase or to reopen provided the report relates to a disability that may establish entitlement. 38 C.F.R. § 3.157(a) (2007). The date of outpatient or hospital examination or date of admission to a VA or uniformed service hospital will be accepted as the date of receipt of the claim. 38 C.F.R. § 3.157(b)(1) (2007). Evidence received from a private physician or layperson will also be accepted as a claim when the evidence is within the competence of the physician or layperson and shows the reasonable probability of entitlement to benefits. The date of receipt of such evidence will be accepted as the date of receipt of the claim. 38 C.F.R. § 3.157(b)(2) (2007). In this case, in a rating decision dated July 1997, the RO granted the veteran service connection for hemorrhoids and assigned that disability a noncompensable evaluation, effective from August 1, 1996. In a letter dated August 1997, the RO notified the veteran of this decision and of his appellate rights with regard to this decision. Thereafter, the veteran appealed the decision to the Board. As previously noted, however, on April 13, 1999, the Board received notification from the veteran requesting withdrawal of his appeal on the claim of entitlement to an initial compensable evaluation for hemorrhoids. The July 1997 rating decision addressing this claim is thus final. The RO did not again receive correspondence mentioning the veteran's hemorrhoids until October 6, 2001, when the RO received the veteran's informal claim for an increased evaluation for hemorrhoids. The RO partially granted this claim in a rating decision dated August 2002 by increasing the evaluation assigned that disability to 20 percent, effective from August 31, 2001, the date of VA treatment of the veteran's hemorrhoids. The veteran now asserts that the Board should assign the 20 percent evaluation an effective date of 1992, the date he began having hemorrhoids. The Board acknowledges the veteran's assertion and agrees that an earlier effective date is warranted in this case, but not for the reason the veteran asserts. Rather, there is no evidence that the veteran filed a claim for an increased evaluation for hemorrhoids at any time after April 13, 1999, but before October 6, 2001. The question is thus whether, during the year preceding October 6, 2001, it was factually ascertainable that the veteran's hemorrhoids were 20 percent disabling, thereby dictating that the Board determine the appropriate effective date based on the date that the increase in disability occurred, rather than on the date the claim for the increased evaluation was received. Pertinent medical documents of record, including VA treatment records dated from August 2001 and a report of VA rectum examination conducted in June 2002, establish that, in August 2001, the veteran sought treatment for hemorrhoids and reported persistent bleeding associated therewith. On that date, a physician objectively confirmed the bleeding hemorrhoids. Thereafter, during a June 2002 VA examination scheduled in response to the veteran's October 2001 claim, an examiner noted anemia associated with the hemorrhoids. It is unlikely that the anemia developed on the very day of the veteran's VA examination. It is more likely that the anemia developed prior to the June 2002 visit, when the veteran felt the need to schedule a treatment visit and file the claim for an increased evaluation. The Board thus accepts that the anemia manifested during the year preceding October 6, 2001. Under 38 C.F.R. § 4.114, Diagnostic Code 7336 (2007), hemorrhoids with persistent bleeding and secondary anemia warrant the assignment of a 20 percent evaluation. Inasmuch as the RO received the veteran's claim for an increased evaluation for hemorrhoids on October 6, 2001 and it was factually ascertainable that that disability was 20 percent disabling during the year preceding that date, the Board concludes that the criteria for entitlement to an effective date of October 6, 2000, for the assignment of a 20 percent evaluation hemorrhoids have been met. The evidence in this case supports the veteran's claim; such claim must therefore be granted. 3. Temporary Total Rating The veteran claims entitlement to a temporary total evaluation under 38 C.F.R. § 4.30, based on right knee surgery performed in October 1999. He contends that, thereafter, he experienced severe postoperative residuals, including a need to use crutches. He argues that his physician did not mention the use of such crutches in his records because the veteran owned them from a prior knee surgery. He points out that, even assuming otherwise, postoperatively, his physician recommended that he do nothing for 24 hours and refrain from working for three days and that the physician's recommendations in this regard constitute evidence of postoperative residuals. A total disability evaluation (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established by a report at hospital discharge or outpatient release that entitlement is warranted for a period of one, two, or three months. Awards are to commence on the day of hospital admission and continue for a period of one to three months from the first day of the month following hospital discharge or outpatient release. 38 C.F.R. § 4.30 (2007). Such an evaluation will be assigned if treatment of a service-connected disability results in: (1) surgery necessitating at least one month of post-operative convalescence; (2) surgery with severe post-operative residuals such as incompletely healed surgical wounds, therapeutic immobilization of one major joint or more, application of a body cast, the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30(a). In this case, on October 14, 1999, on an outpatient basis, the veteran underwent an arthroscopy of his right knee with a lateral release due to severe chronic chondromalacia and malalignment of the patella. Following the surgery, the veteran's physician instructed the veteran to refrain from drinking alcohol and driving for 24 hours, to eat lightly until the next day, to refrain from exercising or engaging in strenuous activity for 21 days, and to refrain from working for three days. The physician also instructed the veteran to move his knee, walk and gently exercise. The veteran clearly experienced residuals of the October 14, 1999 surgery; however, such residuals may not be considered severe. Even assuming, as alleged, that the surgery necessitated the use of crutches, there is no evidence of record indicating that such use extended beyond three days. After all, the physician specifically recommended that the veteran move his knee, walk and exercise, activities that require regular weight bearing and would not be possible with the continued use of crutches. In the absence of competent evidence establishing that the October 14, 1999 surgery necessitated at least one month of postoperative convalescence or caused severe postoperative residuals, the Board concludes that the criteria for entitlement to a temporary total evaluation under 38 C.F.R. § 4.30, based on right knee surgery performed in October 1999, have not been met. The evidence is not in relative equipoise; therefore, the veteran may not be afforded the benefit of the doubt in the resolution of this claim. Rather, as a preponderance of the evidence is against such claim, it must be denied. ORDER The appeal on the claim of entitlement to service connection for a right thumb disability is dismissed. The appeal on the claim of entitlement to an initial compensable evaluation for hemorrhoids is dismissed. Service connection for hypertension is denied. Service connection for a bilateral ankle disability is denied. An effective date of October 6, 2000, for the assignment of a 20 percent evaluation for hemorrhoids is granted subject to statutory and regulatory provisions governing the payment of monetary benefits. A temporary total evaluation under 38 C.F.R. § 4.30, based on right knee surgery performed in October 1999, is denied. REMAND The veteran also claims entitlement to service connection for a bilateral foot disability, including pes planus, metatarsalgia and plantar fasciitis, low back pain, including as secondary to service-connected right and left knee disabilities or PTSD, and sleep apnea, including as secondary to service-connected PTSD, and entitlement to an initial evaluation in excess of 10 percent for PTSD. Additional action is necessary before the Board decides these claims. First, in May 2006, after the veteran's claims file had been transferred to the Board, the veteran submitted evidence, specifically, VA treatment records, to the RO, which the RO then transferred to the Board. These records are pertinent to the veteran's foot claim. The RO did not consider this evidence in the first instance and there is no indication in the record that the veteran is waiving his right to have the RO do so. On January 23, 2002, final rules were promulgated, which, in part, allowed the Board to consider additional evidence without having to refer the evidence to the AOJ for initial consideration, or to obtain the appellant's waiver. 67 Fed. Reg. 3,099, 3,103-04 (Jan. 23, 2002). In Disabled American Veterans v. Secretary of Veterans Affairs, 327 F. 3d 1339 (Fed. Cir. 2003), however, the United States Court of Appeals for the Federal Circuit held that the provisions of 38 C.F.R. §§ 19.9(a)(2), and (a)(2)(ii) (2002) were inconsistent with 38 U.S.C.A. § 7104(a) (West 2002), because they denied appellants a "review on appeal" when the Board considered additional evidence without remanding the case to the RO for initial consideration of that evidence. In light of this holding, on remand, VA must ensure that the veteran is afforded due process by initially considering the previously noted evidence in support of the claim of entitlement to service connection for a bilateral foot disability, including pes planus, metatarsalgia and plantar fasciitis. Second, as previously indicated, the VCAA is applicable to the veteran's appeal and, with regard to the claims being remanded, VA has not yet satisfied its duties to notify and assist the veteran. Under 38 U.S.C.A. § 5103A, VA's duty to assist includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. In this case, examinations of the veteran's feet, low back and mental health are necessary. VA scheduled the veteran for such examinations during the course of this appeal, but the reports of these examinations are inadequate to decide the veteran's foot, low back, sleep apnea and PTSD claims. For instance, therein, one examiner incorrectly indicated that there was no evidence of foot complaints in service. He also indicated that there was no evidence of a current foot disability; he does not appear to have reviewed the veteran's post-service medical records, which reflect treatment for foot problems since discharge from service. In addition, in the reports of examinations, no examiner addressed whether a relationship existed between the veteran's low back disability and sleep apnea and his active service or certain service-connected disabilities. Such an opinion is necessary given a VA treatment provider's May 2003 opinion, albeit unsupported by rationale, linking the veteran's sleep apnea to his active service and the veteran's allegations that physicians have told him that his low back disability is related to either his service-connected knee disabilities or his PTSD and that his sleep apnea is part of his PTSD. Finally, since undergoing the most recent VA PTSD examination, the veteran has reported that his PTSD has worsened and is further hindering his ability to work. Third, in January 2008, the Court held that, with regard to claims for increased compensation, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, No. 05-0355, (U.S. Vet. App. Jan. 30, 2008). The Court further held that, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. As well, the Court held that the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation, including competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores, slip op. at 5-6. In this case, during the course of this appeal, the RO provided the veteran VCAA notice on the claims being remanded. However, given the previously noted decision, it is questionable whether such notice is adequate. More comprehensive notice should thus be furnished the veteran on remand. Based on the foregoing, this case is REMANDED for the following action: 1. Provide the veteran VCAA notice pertaining to the claims being remanded, which satisfies the requirements of the Court's holdings, noted above. 2. Arrange for the veteran to undergo a VA examination in support of his claim for service connection for a foot disability, including pes planus, metatarsalgia and plantar fasciitis. Forward the claims file to the examiner for review of all pertinent documents therein and ask the examiner to confirm in his written report that he conducted such a review. Following a thorough evaluation, during which all indicated tests are performed, the examiner should: a) diagnose any evident foot disability, including, if appropriate, pes planus, metatarsalgia and/or plantar fasciitis; b) opine whether such disability is at least as likely as not related to the veteran's active service, during which the veteran complained of foot pain and examiners confirmed such pain, including in the heel and metatarsal head; c) if any such disability preexisted service, opine whether it increased in severity therein; and d) provide detailed rationale, with specific references to the record, for the opinions provided. 3. Arrange for the veteran to undergo a VA examination in support of his claim for service connection for low back pain, including as secondary to service- connected knee disabilities, or service- connected PTSD. Forward the claims file to the examiner for review of all pertinent documents therein and ask the examiner to confirm in his written report that he conducted such a review. Following a thorough evaluation, during which all indicated tests are performed, the examiner should: a) diagnose any evident low back disability; b) opine whether such disability is at least as likely as not related to the veteran's active service; c) if not, opine whether such disability is proximately due to or the result of his service-connected knee disabilities or PTSD and associated sleep problems; and d) provide detailed rationale, with specific references to the record, for the opinions provided. 4. Arrange for the veteran to undergo a VA examination in support of his claim for a higher initial evaluation for PTSD. Forward the claims file to the examiner for review of all pertinent documents therein and ask the examiner to confirm in his written report that he conducted such a review. Following a thorough evaluation, during which all indicated tests are performed, the examiner should: a) identify and describe the severity of all evident PTSD symptoms; b) specifically indicate whether the veteran's sleep apnea is proximately due to, the result of, or part of, his PTSD; c) indicate whether such symptoms cause occupational and social impairment with reduced reliability and productivity, or deficiencies in most areas, such as work, school, family relations, judgment, thinking and mood; d) indicate whether such symptoms cause total occupational and social impairment; and e) provide detailed rationale, with specific references to the record, for the opinions provided. 5. Readjudicate the claims on appeal based on all of the evidence of record, including that which the veteran submitted to the RO in May 2006. If any benefit sought on appeal is not granted to the veteran's satisfaction, provide the veteran and his representative a supplemental statement of the case and an opportunity to respond thereto. Thereafter, subject to current appellate procedure, return this case to the Board for further consideration, if in order. By this REMAND, the Board intimates no opinion as to the ultimate disposition of the claims on appeal. No action is required of the veteran unless he receives further notice. He does, however, have the right to submit additional evidence and argument on the remanded claims. Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). The law requires that these claims be afforded expeditious treatment. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory Notes) (providing that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled expeditiously); see also VBA's Adjudication Procedure Manual, M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03 (directing the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court). ______________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs