Citation Nr: 1007497 Decision Date: 03/01/10 Archive Date: 03/11/10 DOCKET NO. 08-23 574 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for a bilateral eye disability. 2. Entitlement to service connection for a bilateral foot disability. 3. Entitlement to an initial rating higher than 10 percent for chondromalacia and mild degenerative joint disease of the left knee. 4. Entitlement to an initial rating higher than 10 percent for residuals of an old posterior ligament tear of the right knee. REPRESENTATION Appellant represented by: John S. Berry, Attorney at Law ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1978 to June 1980. These matters come before the Board of Veterans' Appeals (Board) from November 2007, May 2008, and January 2009 rating decisions of the Department of Veterans' Affairs (VA) Regional Offices (RO) in St. Louis, Missouri and Lincoln, Nebraska. In the November 2007 decision, the RO, among other things, denied entitlement to service connection for a bilateral eye disability. Jurisdiction over the Veteran's claim was subsequently transferred to the RO in Lincoln Nebraska. In the May 2008 decision, the RO granted service connection for chondromalacia and mild degenerative joint disease of the left knee and residuals of an old posterior cruciate ligament tear of the right knee. The RO assigned initial disability ratings of 10 percent for each condition, both effective December 21, 2006. In the January 2009 decision, the RO denied entitlement to service connection for bilateral flat feet. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND VA is obliged to provide an examination or obtain a medical opinion in a claim for service connection 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); McLendon v. Nicholson, 20 Vet. App. 79 (2006). 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 finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. The Veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon, 20 Vet. App. at 83. The Veteran's VA medical records reveal that he has been diagnosed as having various eye conditions. For example, a November 2007 VA ophthalmology nursing note indicated diagnoses of status post excision of a chalazion of the left eye and a history of poor vision of the right eye. The Veteran's service treatment records indicate that he had a loss of vision prior to service. His September 1978 entrance examination reveals that his vision was 20/400 in the right eye and 20/20 in the left eye and he was diagnosed as having defective vision. A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. §§ 1137, 1153 (West 2002); 38 C.F.R. § 3.306(a) (2009). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. §§ 1137, 1153; 38 C.F.R. §§ 3.304, 3.306(b) (2009). Service treatment records show that in June 1979 he was treated for eye strain and blurred vision, which he had been experiencing for a week. He was diagnosed as having anisometropia. However, his June 1980 separation examination indicates that his vision apparently improved while in service, noted as 20/200 in the right eye and 20/20 in the left eye. An examination is needed to obtain an opinion as to whether the Veteran has a current eye disability incurred or aggravated by active service or that is otherwise related to service and to determine which conditions, if any are attributable to refractive error and which are acquired eye disabilities. See 38 C.F.R. § 3.303(c) (2009). In a statement received in November 2009, the Veteran reported that his knee disabilities had gotten worse and that he had received VA treatment in September and October 2009. The veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). VA also has a duty to obtain records of the treatment reported by the Veteran in his October 2009 statement. 38 U.S.C.A. § 5103A(b),(c) (West 2002). In his September 2008 claim (VA Form 21-4138) the Veteran stated that he was claiming service connection for bilateral flat feet. He claimed that he had flat feet upon discharge from service and that he experienced numbness and pain in his feet since 1998. The Veteran is competent to report observable symptoms of a bilateral foot disability, such as flat feet, as well as pain. Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet); See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The most recent clinical evidence of a bilateral foot disability is a December 2006 VA primary care consultation note which reveals that the Veteran reported numbness/a thick feeling in his feet. The Veteran's service treatment records reveal that in March and April 1980 he was treated for foot problems due to excessive warmth and moisture and was diagnosed as having possible contact dermatitis of the feet. His June 1980 separation examination indicates that his feet were abnormal and that he was diagnosed as having tinea pedis. The Veteran was scheduled for a VA examination for a bilateral foot disability in December 2008, however he failed to report for the examination. The RO was contacted by someone on behalf of the Veteran and informed that the Veteran was unable to attend the appointment because he was out of town. As there is evidence of a possible current bilateral foot disability that may be related to service, a new examination should be scheduled in order to determine whether the Veteran has a current bilateral foot disability and to obtain a medical opinion as to the relationship of any such disability to service. A January 2007 VA mental health consultation note indicates that the Veteran reported that he was denied Social Security Administration (SSA) disability benefits for an unspecified disability. The United States Court of Appeals for Veterans Claims has held that where there has been a determination with regard to SSA benefits, the records concerning that decision must be obtained, if relevant. Tetro v. Gober, 14 Vet. App. 100, 108-09 (2000); Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992); cf. Golz v. Shinseki, 590 F.3d 1317, 1321 (2010) (there is no duty to get SSA records when there is no evidence that they are relevant). The medical records related to the SSA's disability determination have not yet been associated with the claims file and may be relevant. Accordingly, the case is REMANDED for the following action: 1. Contact the SSA and obtain a copy of that agency's decision concerning the Veteran's claim for disability benefits, including any medical records used to make the decision. 2. Obtain all records of the Veteran's treatment at VA facilities for knee disabilities from the Des Moines, Iowa VAMC since March 30, 2009. 4. After any evidence received from SSA has been associated with the Veteran's claims file, schedule him for a VA examination to determine whether any current bilateral eye disability is related to the eye conditions identified in service. All indicated tests and studies should be conducted. The claims folder must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should opine as to whether any current eye disability clearly and unmistakably pre-existed service and, if so, whether the disability was actually aggravated (underwent a permanent increase in disability) by active service beyond the normal progression of the disease. The examiner should identify those diagnosed eye conditions that are refractive errors as opposed to acquired eye disabilities. If any current eye disability did not clearly and unmistakably pre-exist service, or was not clearly and unmistakably permanently aggravated in service, the examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that any current eye disability is etiologically related to the Veteran's in-service eye conditions or any other disease or injury in service. The examiner must provide a rationale for each opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so. The examiner should note whether any current eye disability is considered a refractive error. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered in formulating any opinions. 3. After any evidence received from SSA has been associated with the Veteran's claims file, schedule him for a VA examination to determine the nature and etiology of any current foot disability. All indicated tests and studies should be conducted. The claims folder must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that any current foot disability is related to the Veteran's in-service foot conditions or any other disease or injury in service. The examiner must provide a rationale for each opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered in formulating any opinions. 4. After records from SSA and VA have been associated with the claims folder, afford the Veteran an examination to evaluate the current severity of his service connected knee disabilities. The examiner should review the claims folder and note such review in the examination report or in an addendum. The examiner should report the ranges of knee flexion and extension in degrees and note the point, if any, at which pain begins. The examiner should also note whether either knee disability is manifested by weakened movement, excess fatigability, incoordination, pain or flare-ups. These determinations should be expressed in terms of the degree of additional range- of-motion loss due to any weakened movement, excess fatigability, incoordination, pain or flare-ups. The examiner should also provide an opinion as to the severity of any subluxation or instability and note whether there is dislocation of the semilunar cartilage and if so, note any associated symptoms. 5. The agency of original jurisdiction should review the examination reports to ensure that they contain the information requested in this remand. 6. The Veteran is advised that these examinations are necessary to evaluate his claims, and that if he fails without good cause to report for the examinations, those claims could be denied. 7. If any benefit on appeal remains denied, issue a supplemental statement of the case. Thereafter, the case should be returned to the Board, if in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ Mark D. Hindin 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) (2009).