Citation Nr: 0810441 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 04-44 421 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for arthritis of the left knee. 2. Entitlement to service connection for a skin rash, claimed as due to herbicide exposure. 3. Entitlement to service connection for varicose veins of the right lower extremity. 4. Entitlement to service connection for varicose veins of the left lower extremity. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. A. Rein, Associate Counsel INTRODUCTION The veteran had active military service from July 1967 to July 1987. This appeal to the Board of Veterans' Appeals (Board) arises from an April 2003 rating decision that, inter alia, continued a previous 10 percent rating for service-connected hypertension, increased a rating for service-connected residuals of a right hip injury from 0 to 10 percent, and denied service connection for degenerative arthritis of the left knee, for skin rash (claimed as due to herbicide exposure), and varicose veins of the right and left lower extremities. The appellant filed a Notice of Disagreement (NOD) in regard to those issues in March 2004, and the RO issued a Statement of the Case (SOC) in June 2004. The appellant filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals), in December 2004. In April 2006, the veteran testified during a video conference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. Following the hearing, the veteran submitted private medical records with a waiver of initial RO consideration. The Board has accepted this additional evidence for inclusion into the record on appeal. See 38 C.F.R. § 20.800 (2007). In an October 2006 decision, the Board, inter alia, denied service connection for a skin rash, claimed as due to herbicide exposure, for varicose veins of the right and left lower extremities, and for arthritis of the left knee. The veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In November 2007, counsel for the veteran and the VA Secretary filed a joint motion pertaining to the four claims for service connection noted above. In a November 2007 Order, the Court granted the joint motion, effectively setting aside that portion of the Board's October 2006 decision that denied each claim, and remanding these matters to the Board for further proceedings consistent with the joint motion. [Parenthetically, the Board notes that, while the Court only enumerated three of the four issues noted above in its order (in error), the Court undoubtedly intended its order to encompass all issues addressed in the joint motion\; the Court also dismissed the appeal as to the remaining issues.]. The Board points out that, at the time of the rating decision on appeal, and throughout much of the pendency of this appeal, the veteran was represented by the Disabled American Veterans, a veteran's service organization. However, since January 2007, the veteran has been represented by a private attorney; the Board recognizes the change in representation. For the reasons expressed below, the matters on appeal are being remanded to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the veteran when further action, on his part, is required. REMAND In light of instructions raised in the joint motion, and the Board's review of the claims file, further RO action on these matters is warranted. In the October 2006 decision, the Board denied service connection for arthritis of the left knee on the basis that there was no medical evidence of a currently diagnosed left knee disorder. However, in the joint motion, the parties indicated that a December 2004 MACH family clinic record shows that the veteran was diagnosed with crepitus in his knees, and the Board did not consider whether crepitus was a residual of the veteran's in-service left knee injuries in July 1978 and June 1979, an in-service radiology report of both knees in December 1986 reflecting mild to moderate degenerative bilaterally, or a diagnosis of degenerative joint disease at his May 1987 retirement examination. The parties indicated that remand of his matter-for consideration of this evidence and further medical examination and opinion, if needed-was warranted. The Board also notes that the veteran has based his claim for service connection for a skin rash on alleged in-service herbicide exposure. As the veteran served in Vietnam, he is presumed to have been exposed to herbicides. See 38 U.S.C.A. § 1116(f) (West 2002 & Supp. 2007) and 38 C.F.R. § 3.307(a)(6)(iii) (2007). Herbicide exposure may serve as the basis for service connection on a presumptive basis for certain listed diseases. 38 C.F.R. §§ 3.309(d)(2), (e) (2007). Moreover, a veteran is not precluded from establishing service connection by showing a medical nexus between a claimed condition and herbicide in service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In the October 2006 decision, the Board denied the veteran's claim on the basis that there was no evidence that the veteran received treatment for or diagnosis of a skin disorder since his discharge from service. In However, in the joint motion, the parties specifically indicated that the Board did not consider evidence from a July 2004 VA examination report showing that the veteran was diagnosed with "folliculitus since 1968" (albeit, without further comment by the examiner). The parties indicated that a remand of this matter-for consideration of this evidence and further medical examination and opinion, if needed-was warranted. With respect to the claims for service connection for varicose veins of the right and left lower extremities, the veteran attributes the onset of currently diagnosed varicose veins to his military service, alleging that he had this condition in service and it has continued since discharge. In the October 2006 decision, the Board denied the claims on the basis that a chronic varicose vein condition was not shown in service or for many years after separation and there was no medical nexus opinion of record. However, in the joint motion, the parties indicated that since the July 2003 VA examiner who diagnosed the veteran's current varicose vein disorder did not have access to the veteran's claims file and did not provide an opinion, a remand of this matter was warranted to obtain a new medical examination and opinion whether the veteran's varicose veins are related to service. The Board also points out that a veteran is competent to present lay testimony as to the onset of a medical condition-such as varicose veins-which is capable of being observed by a lay person. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Under the circumstances of each claim, as noted above, the Board finds that further examination and medical opinion in connection with each claim is warranted. See 38 U.S.C.A. § 5103A(d)(2) (West 2002 & Supp. 2007), 38 C.F.R. § 3.159(c)(4)(i) (2007); McLendon v. Nicholson, 20 Vet. App. 79 (2007). Accordingly, the RO should arrange for the veteran to under VA orthopedic, determatology, and vascular examinations, by appropriate physicians, to obtain medical information needed to resolve each claim for service connection. The veteran is hereby advised that failure to report to any scheduled examination(s), without good cause, may result in denial of the original claim(s) for service connection (as the claim(s) will be considered on the basis of the evidence of record). See 38 C.F.R. § 3.655(a) (2007). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Id. If the veteran fails to report to any scheduled examination(s), the RO must obtain and associate with the claims file a copy(ies) of any notice(s) of the date and time of the examination(s) sent to him by the pertinent VA medical facility. Further, to ensure that all due process requirements are met, prior to arranging for the veteran to undergo examination, the RO should afford the veteran another opportunity to present information and/or evidence pertinent to his claims for service connection. The RO's notice letter to the veteran should explain that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2007) amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The RO also should invite the appellant to submit all pertinent evidence in his possession, and ensure that its notice meets the requirements of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), as regards the five elements of a claim for service connection-particularly, disability rating and effective date-as appropriate. After providing the appropriate notice, the RO should obtain any additional evidence for which the veteran provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159 (2007). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2007). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure that the VCAA has fully been complied with. Hence, in addition to the action requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims remaining on appeal. Accordingly, these matters are hereby REMANDED to the RO, via the AMC, for the following actions: 1. The RO should send to the veteran and his attorney a letter requesting that the veteran provide sufficient information, and if necessary, signed authorization, to enable it to obtain any additional evidence pertaining to the claims for service connection remaining on appeal. The RO should also invite the veteran to submit all pertinent evidence in his possession and ensure that its letter meets the notice requirements of Dingess/Hartman (cited to above)- particularly as regards disability rating and effective date. The RO's letter should clearly explain to the veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 2. If the veteran responds, the RO should assist the veteran in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the veteran and his attorney that the records were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all available records and/or responses from each contacted entity are associated with the claims file, or, the time period for the veteran's response has expired, the RO should arrange for the veteran to undergo VA dermatology, vascular, and orthopedic examinations, by appropriate physicians, at a VA medical facility. The entire claims file, to include a complete copy of this REMAND, must be provided to each examiner designated to examine the veteran, and each examination report should reflect consideration of the veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the requesting physician prior to the completion of his r her report) and all clinical findings should be reported in detail. Each examiner should set forth all examination findings, along with the complete rationale for the conclusions reached, in a printed (typewritten) report. Orthopedic examination - The orthopedic examiner should clearly identify all current disability(ies) of the left knee. With respect to each diagnosed left knee disability, the physician should offer an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that such disability is the result of disease or injury incurred in or aggravated during the veteran's military service. In rendering the requested opinion, the examiner should specifically consider and address the significance, if any, of pertinent complaints noted in service and the assessment of degenerative joint disease noted at separation. Dermatology examination - The physician should identify all current dermatological disorders. With respect to each diagnosed disorder, the examiner should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that such disability is the result of disease or injury incurred in or aggravated during the veteran's military service, to include herbicide exposure in Vietnam. In rendering the requested opinion, the examiner should specifically consider and address the significance, if any, of pertinent complaints noted in service, and the February 2004 VA examiner notation of "folliculitis since 1968". Vascular examination - With respect to currently diagnosed varicose veins of the right and/or left lower extremityi/es, the examiner should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that each such disability is the result of disease or injury incurred in or aggravated during the veteran's military service. In rendering the requested opinion, the examiner should specifically consider and address the significance, if any, of pertinent complaints noted in service, and the veteran's assertions that he had the condition in service and that it has continued, to date.. 4. If the veteran fails to report to any scheduled examination(s), the RO must obtain and associate with the claims file copy(ies) of any notice(s) of the date and time of the examination(s) sent to the veteran by the pertinent facility. 5. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested action, and any additional notification and/or development deemed warranted, the RO should readjudicate each of the claims remaining on appeal in light of all pertinent evidence and legal authority. 7. If any benefit sought on appeal remains denied, the RO must furnish to the veteran and his attorney an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). These claims must be afforded expeditious treatment. The law requires that all claims 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. 2007). _________________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2007).