Citation Nr: 1203608 Decision Date: 02/01/12 Archive Date: 02/13/12 DOCKET NO. 07-06 369A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for hepatitis C. 2. Entitlement to an increased rating for service-connected cervical discogenic degenerative disease with limitation of motion and recurrent neck pain, currently evaluated as 20 percent disabling. 3. Entitlement to an increased rating for service-connected lumbar discogenic degenerative disease with painful motion, currently evaluated as 10 percent disabling. 4. Entitlement to an increased rating for service-connected bilateral plantar fasciitis with hallux valgus and spurring, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The Veteran served on active duty from August 1976 to August 1979 and from June 1987 to June 2001. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND The Veteran's hepatitis C, cervical spine and lumbar spine claims were last adjudicated by the RO in a February 2007 Statement of the Case (SOC). The Veteran's bilateral feet claim was last adjudicated in a November 2009 SOC. Thereafter, the VA has received a significant amount of private treatment records related to these claims. Much of the evidence came prior to certification to the Board. Although the Veteran submitted some treatment records accompanied with a waiver of local jurisdictional review, the waivers did not encompass all evidence received since the last SOC. If an SOC is prepared before the receipt of further evidence, a supplemental statement of the case (SSOC) must be issued to the Veteran, as provided in 38 C.F.R. § 19.31, unless the additional evidence is duplicative or not relevant to the issue(s) on appeal. 38 C.F.R. § 19.37(a) (2011). See also 38 C.F.R. § 20.1304. In this case, the newly received evidence shows ongoing treatment for the Veteran's conditions and, therefore, is relevant to the claims at hand. The RO denied the Veteran's claim seeking service connection for hepatitis C in part due to the fact the Veteran never returned a hepatitis C questionnaire identifying in-service risk factors. The Veteran claims he never received such a questionnaire. On remand, he should be sent a new questionnaire. The Veteran did identify in-service surgeries he believes resulted in blood transfusions and may have led to the development of his hepatitis C. Service treatment records confirm various in-service surgical treatments, but do not confirm in-service blood transfusions. The Board further notes the Veteran was afforded a VA examination in June 2005 where the examiner diagnosed the Veteran with hepatitis C, but did not offer a nexus opinion as to whether his diagnosis could be related to in-service surgical treatment. Corrective action is required. Barr v. Nicholson, 21 Vet. App. 303 (2007). With regard to the Veteran's increased rating claims, the Veteran was last afforded VA examinations in 2007, nearly five years ago. Since that time, the Veteran has submitted additional private treatment records indicating a possible progression of his disabilities. The Veteran further argues that with respect to his low back and neck claims, he has never been afforded a neurological examination to ascertain neurological manifestations stemming from his spine disabilities. The Board agrees. See Snuffer v. Gober, 10 Vet. App. 400 (1997). Thus, corrective action is required and new VA examinations are indicated. In June 2011, the Veteran submitted a statement indicating he has been treated at VA facilities in Dallas, Fort Worth, Waco and Temple since his retirement in 2001. The RO should take this opportunity to make efforts to obtain any additional private or VA treatment records that may not be currently of record. Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran appropriate notice regarding the claims for service connection and the increased rating claims and a hepatitis C questionnaire. 2. Ask the Veteran to identify and provide release forms for any private or VA treatment received for any of the claimed conditions since 2001. Thereafter, efforts should be made to obtain any and all identified treatment, to include at the VA Medical Centers in Dallas, Texas; Fort Worth, Texas; Temple, Texas; and Waco, Texas from 2001 to the present. All efforts to obtain identified medical records should be fully documented, and any VA facility must specifically provide a negative response if records are not available. 3. After 1 and 2 above are completed, and records are obtained, to the extent available, schedule the Veteran for an appropriate VA examination to ascertain the likely etiology of his hepatitis C. The claims folder must be made available to the examiner for review. Based on the examination and review of the record, the examiner should answer the following: Is it at least as likely as not (50% probability) that the Veteran's hepatitis C is due to in-service surgical treatments or any other identified in-service risk factor versus post-service risk factors? The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 4. After 1 and 2 above are completed, and records are obtained, to the extent available, schedule the Veteran for an orthopedic and neurological VA examinations for his neck, back and feet claims to ascertain the current severity of all condition(s) found, to include any neurological manifestations thereof. All indicated tests should be performed and the claims folder must be provided to the examiners for review. The examiners should note in the examination report all pertinent pathology associated with the service-connected low back disability, cervical spine disability and bilateral feet, to include range of motion findings. The neurologic examiner should opine as to whether the Veteran has a neurological abnormality and, if so, what nerve(s) is/are affected and whether the disorder is "mild," "moderate" or "severe," fully explaining the rationale behind any opinion rendered. The examiner should also note whether the Veteran has intervertebral disc syndrome and, if so, should discuss the number of incapacitating episodes that the Veteran has experienced in the past year due to this spine disability. In addition, the examiners should discuss whether the Veteran's service-connected low back or neck disability exhibits weakened movement, excess fatigability, or incoordination that is attributable to the applicable service-connected disorders. If feasible, this determination should be expressed in terms of the degree of additional range of motion lost. The examiners should also express an opinion as to the degree to which pain could significantly limit functional ability during flare-ups or when the Veteran uses his back or neck repeatedly over a period of time. The examiners are requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 5. After the above is complete, readjudicate the Veteran's issues remaining on appeal. If any benefit sought on appeal remains denied, provide the Veteran and his representative a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matters that the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. The claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. _________________________________________________ M. E. LARKIN 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) (2011).