Citation Nr: 1147082 Decision Date: 12/28/11 Archive Date: 01/09/12 DOCKET NO. 09-12 982 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a right knee disorder. 2. Entitlement to service connection for a bilateral ankle disorder. 3. Entitlement to service connection for hypertension. 4. Entitlement to a disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD). 5. Entitlement to a disability rating in excess of 10 percent for neuroma of the left leg. 6. Entitlement to a disability rating in excess of 10 percent for a left knee disorder. REPRESENTATION Appellant represented by: Rebecca C. Patrick, Attorney ATTORNEY FOR THE BOARD S. Layton, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from October 1962 to February 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2006, February 2009, and October 2009 rating decisions for the Winston-Salem, North Carolina Regional Office (RO) of the Department of Veterans Affairs (VA). 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 revised VCAA duty to assist requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim and in claims for disability compensation requires that VA provide medical examinations or obtain medical opinions when necessary for an adequate decision. 38 C.F.R. § 3.159. A medical examination or medical opinion is deemed to be necessary if the record does not contain sufficient competent medical evidence to decide the claim, but includes competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability, establishes that the veteran suffered an event, injury, or disease in service, or has a disease or symptoms of a disease manifest during an applicable presumptive period, and indicates the claimed disability or symptoms may be associated with the established event, injury, or disease. 38 C.F.R. § 3.159(c)(4). In an independent medical report completed in September 2008, C.N.B., M.D., states that the Veteran has hypertension due to an inability to exercise due to an altered gait due injured legs. According to Diagnostic Code 7101, Note 1, for VA purposes, hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days, and the term hypertension means that the diastolic blood pressure is predominantly 90 mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm. Or greater with a diastolic blood pressure of less than 90 mm.. See 38 C.F.R. § 4.104, Diagnostic Code 7101 (2011). Although Dr. B.'s report does not contain the data required by regulation to confirm a hypertensive disability for VA compensation purposes, it gives rise to the possibility that the Veteran might have hypertension secondary to his service-connected disorders. Thus, the Board finds that the Veteran should be afforded a VA examination to determine if the Veteran has hypertension secondary to his service-connected disorders. Concerning the claim for an increased disability rating for the Veteran's left leg neuroma, the Board notes that the disorder is currently rated under Diagnostic Code 8721, for neuralgia of the external popliteal nerve. The Veteran's attorney has asserted that Diagnostic Code 8721 does not account for all of the symptoms attributable to the Veteran's service-connected neuroma residuals. In examining the record, it appears that although service connection is in effect for a neurological disability of the left leg, the Veteran has never been afforded a neurological examination. Thus, in order to properly rate the Veteran's service-connected neuroma of the left leg, the Board finds that the Veteran should be afforded a VA neurological examination. Additionally, the Veteran's attorney has indicated that the Veteran is in receipt of Social Security Administration (SSA) disability benefits. However, no records from the SSA are of record. The Board observes that SSA disability benefits are based on a claimant's age, employment history, and disability. 42 U.S.C.A. § 423; 20 C.F.R. §§ 404.1505, 404.1520. Accordingly, the SSA may have medical records regarding a claimant's disabilities where a claimant is in receipt of disability benefits. As the Veteran's attorney has indicated that the Veteran is in receipt of SSA disability benefits, a remand is necessary to attempt to obtain these records, as they may contain evidence pertinent to the Veteran's claim. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Finally, the Board notes that, in a February 2009 rating decision, the RO granted a service connection and a separate disability rating of 10 percent for left knee laxity. In April 2009, the Veteran indicated that he disagreed with the disability rating assigned for left knee laxity, thus initiating the appellate process regarding that issue. However, the RO has yet to issue a SOC with respect to that issue, the next step in the appellate process. See 38 C.F.R. § 19.29; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Holland v. Gober, 10 Vet. App. 433, 436 (1997). Consequently, this matter must be remanded to the RO for the issuance of an SOC. Id. The Board emphasizes, however, that to obtain appellate review of any issue not currently in appellate status, a perfected appeal must be filed. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should issue an SOC on the issue of entitlement to a disability rating in excess of 10 percent for left knee laxity. It should also inform the Veteran of the requirements to perfect an appeal with respect to this issue. 2. If the Veteran perfects an appeal with respect to this issue, the RO/AMC should ensure that all indicated development is completed before the case is returned to the Board. 3. The RO/AMC must ascertain if the Veteran has received any VA, non-VA, or other medical treatment for his claimed disorders that is not evidenced by the current record. The RO/AMC must gather any outstanding VA treatment records and provide the Veteran with authorization forms for the release of any identified outstanding private treatment records. Any such records must be obtained and associated with the claims folder. If any identified private records cannot be obtained, the Veteran must be so informed and provided an opportunity to submit any copies thereof in his possession. 4. The RO/AMC should request from SSA a copy of its determination on the Veteran's claim for disability benefits, as well as copies of all medical records underlying its determination. In requesting these records, the RO/AMC should follow the current procedures of 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 5. After all records and/or responses received from each contacted entity have been associated with the claims file, or a reasonable time period for the Veteran's response has expired, the Veteran should be afforded a VA examination by appropriate personnel to determine the etiology of any current hypertension. All indicated tests and studies are to be performed. Pursuant to Diagnostic Code 7101, any diagnosis of hypertension must be confirmed by readings taken two or more times on at least three different days. Prior to the examination, the claims folder and a copy of this remand must be made available to the physician for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. After review of the record and examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current hypertension was incurred in or aggravated by active service or any other service connected disability (to include as a result of an inability to exercise; if applicable). All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. Sustainable reasons and bases must be given for any opinion rendered. 6. After all records and/or responses received from each contacted entity have been associated with the claims file, or a reasonable time period for the Veteran's response has expired, the Veteran should be afforded a VA examination by appropriate personnel to determine the symptoms expressed by the Veteran's service-connected neuroma of the left leg. All indicated tests and studies are to be performed. Prior to the examination, the claims folder and a copy of this remand must be made available to the physician for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. After review of the record and examination of the Veteran, the examiner should identify the nerves involved and severity of involvement as either mild, moderate, moderately severe, or severe. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. Sustainable reasons and bases must be given for any opinion rendered. The Veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent must be associated with the claims folder. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 38 C.F.R. § 3.655. 7. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO/AMC should readjudicate the claims on appeal in light of all pertinent evidence and legal authority. Adjudication of the claims for a higher disability rating should include specific consideration of whether "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found), is appropriate. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). If any benefit sought on appeal remains denied, the RO must furnish to the Veteran an appropriate SSOC that includes clear reasons and bases for all determinations and afford him an appropriate time period for response. 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. 2010). _________________________________________________ MICHAEL A. PAPPAS 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).