Citation Nr: 1106830 Decision Date: 02/18/11 Archive Date: 02/28/11 DOCKET NO. 09-18 625 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for pes planus, left foot. 2. Entitlement to an initial compensable rating for service- connected hypertension. 3. Entitlement to an initial compensable rating for a service- connected right wrist disability. 4. Entitlement to an initial compensable rating for a service- connected right elbow disability. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. G. Alderman, Associate Counsel INTRODUCTION The Veteran had active service from December 1980 to December 1983 and from July 1986 to August 2007. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran appeared and provided testimony before the undersigned Veterans Law Judge (VLJ) in December 2010. A transcript of the hearing has been associated with the claims file. Subsequent to the October 2009 Supplemental Statement of the Case, the Veteran submitted additional evidence and a waiver of RO review. The additional evidence and waiver have been associated with the claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran also seeks a compensable rating for his service- connected right-wrist and right elbow disabilities. During his testimony before the Board and in written statements, the Veteran alleged that his right wrist and elbow conditions have worsened. The United States Court of Appeals for Veterans Claims has held that when a Veteran alleges that his service-connected disabilities have worsened since he was previously examined, a new examination may be required to evaluate the current degree of impairment. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Given the foregoing, the Veteran should be scheduled for VA examination to determine the current nature and severity of his service- connected right wrist and elbow disabilities. The Veteran seeks service connection for a left foot condition, or fallen arch/pes planus. The separation documents, including the February 2007 Report of Medical History (RMH) and accompanying physical examination, show a fallen arch of the left foot with intermittent mild pain. The Veteran was afforded a VA examination in April 2008; however, the VA examiner did not find a fallen arch of the left foot and did not review the Veteran's claims file in conjunction with the examination. Because the condition was not found, the examiner did not provide an opinion regarding the alleged disability. Since the examiner did not take the Veteran's prior treatment records into consideration, and the Board is remanding for a VA examination on another issue, the Board finds that a second opinion to determine the nature and etiology of the Veteran's current complaints of left foot pain is warranted. Finally, the Veteran contends that he should be entitled to a compensable rating for his hypertension. For a compensable, 10 percent rating, the evidence must show diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent evaluation is assigned for hypertensive vascular disease with diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more. Hypertensive vascular disease with diastolic pressure predominantly 120 or more is rated 40 percent disabling and hypertensive vascular disease with diastolic pressure predominantly 130 or more is rated 60 percent disabling. 38 C.F.R. § 4.104, DC 7101. In this case, the VA examiner did not review the claims file in conjunction with the examination and did not indicate whether the Veteran requires continuous medication for control of his hypertension. The Board, therefore, must return this examination report as being inadequate for rating purposes. 38 C.F.R. § 4.2. See generally Hampton v. Gober, 10 Vet. App. 481 (1997) (VA examination which does not contain an express finding regarding a disability for which an examination was requested is not sufficient to satisfy the duty to assist). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of his left foot condition and to determine the current nature and severity of his service- connected right wrist, right elbow, and hypertension. The claims file and a copy of this Remand must be provided to the examiner and the examiner must indicate review of these items in the report. The examiner should indicate whether it is at least as likely as not (50 percent or more) that the Veteran's left foot condition, if any, had onset during or is in any way related to his periods of active service. The examiner is asked to specifically address the February 2007 separation examination. Regarding the service connected disabilities, the examiner should include range of motion testing and address the DeLuca criteria and whether the Veteran exhibits functional loss due to weakness, fatigability, incoordination or pain on movement. The examiner should indicate whether the Veteran's diastolic pressure is predominantly 100 or more, his systolic pressure predominantly 160 or more, or whether he has a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A complete rationale must be provided for any opinion offered. If the VA examiner concludes that an opinion cannot be offered without engaging in speculation then she/he should so indicate. However, the examiner should explain why it would be speculatory to provide an opinion. 2. Upon completion of the above, readjudicate the claim. If the benefits sought on appeal remain denied, provide the Veteran and his representative a supplemental statement of the case (SSOC) and allow an appropriate period of time for response. 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. 2010). _________________________________________________ JOHN J. CROWLEY 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) (2010).