Citation Nr: 0811298 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 02-11 326 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for patellofemoral pain syndrome, right knee. 3. Entitlement to an increased evaluation for patellofemoral pain syndrome left knee with degenerative joint disease, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The veteran served on active duty from March 1966 to March 1986. This case comes before the Board of Veterans' Appeals (Board) from a rating decision from the Regional Office (RO) of the Department of Veterans Affairs (VA), in Atlanta, Georgia which denied the matters on appeal. The Board remanded this matter in August 2006 to address due process concerns. It is now returned to the Board. Although a statement submitted by the veteran in June 2006 was construed by the RO in its November 2007 supplemental statement of the case (SSOC) as an intention to withdraw his appeal, the RO continued the appeal because the veteran's representative had forwarded the matter for certification and it was forwarded to the Board which remanded it in August 2006. A review of the June 2006 statement which in part directs the Board to "close this case out" does not clearly reflect a desire to withdraw this appeal, as it could also could be construed as a request to the Board to render a final decision. Thus this matter remains in appellate status. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In this case, the Board remanded this matter in August 2006 solely to ensure that all notice obligations have been satisfied in accordance with 38 U.S.C.A. § 5103(a) and 38 U.S.C.A. § 5103A (West 2002 & Supp. 2007) and 38 C.F.R. § 3.159 (2007). Upon further review of the file, there are some evidentiary deficiencies that must be addressed. Specifically the Board notes that the representative has pointed out in a December 2005 statement in lieu of 646 of a number of developmental deficiencies which include the failure of the AOJ to provide VA examinations to address the etiology of the disorders of hypertension and right knee patellofemoral syndrome for which service connection is being claimed. Also argued was that the October 2005 VA examination to address the severity of the left knee disorder of patellofemoral syndrome with arthritis, was inadequate as it failed to discuss fully the functional limitations as set forth by the United States Court of Veterans Appeals (Court) to include evidence of weakened movement, excess fatigability, incoordination, or functional loss due to pain on use or flare-ups when the joint in question is used repeatedly over a period of time. See DeLuca v. Brown, 8 Vet. App. 202, 206 - 207 (1995). A review of the service medical records does reflect that the veteran complained of a history of high blood pressure during active service, and there were some blood pressure readings showing elevated blood pressure. Furthermore the service medical records did include complaints of bilateral knee pain and crepitus, thereby encompassing the right knee. The AOJ conceded that there were right knee problems in service but denied on the basis that there was not continuity of symptoms since there are no records of treatment for the knee post- service. However VA treatment records from 2002 to 2003 note his complaints regarding a knee condition with findings of arthritis on musculoskeletal examinations. This includes the January 2002 Agent Orange examination noting degenerative joint disease of various joints and a January 2003 record indicating the veteran was claiming service connection for a knee condition and musculoskeletal examination revealed arthritis, although the specific area containing arthritis is not clear. Likewise VA records reflect that the veteran currently has hypertension. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The threshold for getting an examination is low. McLendon v.Nicholson, No. 04-0185 (June 5, 2006); see also Buchanon v. Nicholson, No. 05-7174 (Fed. Cir. Jun. 14, 2006). Moreover, regarding the right knee claim, such examination should discuss whether there is a right knee problem to include as secondary to the service-connected left knee problem in light of the findings on a December 1989 VA examination which revealed the veteran to state that his right knee was beginning to trouble him due to favoring the left knee. Regarding the claim for entitlement to an increased rating for a service-connected left knee disorder, the Board finds that in addition to the concerns raised by the representative in the December 2005 statement, that due to the amount of time that has passed since the last VA examination of October 2005, a VA examination should be scheduled to address the severity of his left knee condition. Finally the Board notes that a potential deficiency may yet exist regarding the duty to provide proper notification sent by the AOJ in August 2006 in response to the Board's prior remand of August 2006. The Board is noted to have directed the RO regarding the VA's duties to notify and assist to include as they pertain to his claim for service connection for hypertension, to include whether new and material evidence has been submitted to reopen his claim for service connection for hypertension. The AOJ did not send such notice addressing the criteria for new and material evidence, but has instead consistently adjudicated this claim on a de novo basis, having pointed out that a prior rating decision of May 1986 denying service connection was apparently sent without notification. The representative has argued that the RO conceded that the May 1986 rating decision is nonfinal and has requested that the claim be considered pending from the original claim of April 1986 predating the May 1986 rating decision. Thus clarification is needed by the RO as to whether the hypertension claim is pending from prior to the May 1986 rating, and if not, should endeavor to provide the appropriate notice of the duty to notify and assist for new and material claims when addressing this issue. VA's duty to notify a claimant seeking to reopen a claim included advising the claimant of the evidence and information necessary to reopen the claim and of the evidence and information necessary to establish entitlement to the underlying claim for the benefit sought by the claimant. Kent v. Nicholson, 20 Vet. App. 1 (2006). The Court further held that VA must, in the context of a claim to reopen, look at the bases for the denial in the prior decision and respond with a notice letter that describes what evidence would be necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial. Id. at 9-10. Accordingly, the case is REMANDED for the following action: 1. The AOJ should clarify whether it is adjudicating the hypertension claim on a de novo basis pending from the date of the original claim of April 1986 based on there being a nonfinal decision dated in May 1986. If the AOJ declines to adjudicate this claim from the May 1986 decision, the AOJ must review the entire file and ensure that all notice obligations have been satisfied in accordance with 38 U.S.C.A. § 5103(a) and 38 U.S.C.A. § 5103A (West 2002 & Supp. 2007) and 38 C.F.R. § 3.159 (2007). In particular the AOJ must notify the veteran with regard to his claim for service connection for hypertension that articulates the basis of the last final denial; notifies the veteran of the evidence and information necessary to reopen his claim; and notifies the veteran of the evidence required to establish entitlement to his underlying service connection claim. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The veteran should also be provided a letter that informs him of the evidence needed to establish service connection as secondary to a service-connected disability. The claims file must include documentation that there has been compliance with the VA's duties to notify and assist a claimant as specifically affecting the issues on appeal. 2. The AOJ should schedule the veteran for a VA orthopedic examination, by an appropriate specialist, to determine the nature and extent of his service-connected left knee disability as well as the nature and etiology of his claimed right knee disorder. The claims file and a separate copy of this remand should be made available to and reviewed by the examiner(s) in conjunction with the examination. Any indicated special studies should be conducted. The examiner should record pertinent medical complaints, symptoms, and clinical findings. The extent of arthritis of left knee shown by X-rays and the active and passive range of motion of the right knee and left knee in degrees should be reported. The examiner also should comment on the functional limitations caused by the veteran's service-connected left knee disabilities. It is requested that the examiner address the following questions: (a) Does the left knee disability cause weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy? If the severity of these manifestations cannot be quantified, the examiner should so indicate. Specifically, the examiner must address the severity of painful motion from intermediate degrees to severe. The examiner must note at what degree in the range of motion that pain is elicited as well as the severity of such pain. (b) With respect to subjective complaints of pain, the examiner should comment on whether the subjective complaints are supported by objective findings; whether any pain is visibly manifested upon palpation and movement of the left knee and whether there are any other objective manifestations that would demonstrate disuse or functional impairment of the left knee due to pain attributable to the service-connected disabilities. The examiner should also address the etiology of the veteran's claimed right knee disability to include whether it is secondary due to his service-connected left knee disorder. Specifically the examiner is requested to provide an opinion as to (1) whether the veteran has a current disorder of the right knee; (2) whether any diagnosed disorder(s) of the right knee at least as likely as not began in service, based on review of the records of knee complaints in the service medical records; (3) the medical probability that any documented diagnosed disorder(s) of the right knee is related to the appellant's service-connected left knee disorder and (4) whether it is at least as likely as not (at least a 50 percent chance) that the appellant's service- connected left knee disorder aggravated or contributed to or accelerated any diagnosed disorder(s) of the right knee found beyond any natural progression. If the appellant's service-connected left knee disorder aggravated or contributed to or accelerated any pathologic process involving the right knee, the examiner must state to what extent, given in terms of a percentage, did it so contribute as compared to the natural progress of the disease itself or as opposed to other possible contributing factors. The examiner must provide a comprehensive report including complete rationales for all conclusions reached. 3. After the completion the above, the AOJ should schedule the veteran for a VA cardiovascular disorders examination to determine the nature and etiology of the veteran's claimed disability of hypertension. The examination should be conducted by the appropriate specialist to determine whether any hypertension(s) is due to or aggravated by service. The claims file and a separate copy of this remand must be made available to and reviewed by the examiner prior and pursuant to conduction and completion of the examination, and the examination reports must be annotated in this regard. The examiner is requested to review the pertinent medical records, examine the appellant and provide a written opinion as to the presence, etiology and onset of his claimed hypertension condition. Specifically the examiner(s) is requested to provide an opinion as to (1) whether the veteran has a current hypertension; (2) whether any diagnosed hypertension at least as likely as not began in service. The examiner must address the findings and complaints of elevated blood pressure in the service medical records and provide a comprehensive report including complete rationales for all conclusions reached. 4. Thereafter, the AOJ should readjudicate the veteran's claims. If any benefit sought on appeal remains denied, the veteran should be provided a supplemental statement of the case. It must contain notice of all relevant actions taken on the claims for benefits, to include a summary of the evidence and discussion of all pertinent regulations. Adjudication of the service connection claims should consider the applicability of 38 C.F.R. § 3.310(a) (2007) and Allen v. Brown, 7 Vet. App. 439, 448 (1995) for the right knee disorder and if appropriate, the criteria for reopening previously denied claims for the hypertension claim. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The purposes of this remand are to comply with due process of law and to further develop the claim. No action by the veteran is required until he receives further notice; however, the veteran is advised that failure to cooperate by reporting for examination may result in the denial of the claim. 38 C.F.R. § 3.655 (2007). The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this case, pending completion of the above. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).