Citation Nr: 1300795	
Decision Date: 01/09/13    Archive Date: 01/16/13

DOCKET NO.  10-33 080	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Reno, Nevada


THE ISSUES

1.  Entitlement to service connection for cardiomyopathy with congestive heart failure, claimed as secondary to service-connected posttraumatic stress disorder (PTSD).

2.  Entitlement to service connection for a gastrointestinal disability, claimed as secondary to PTSD.

3.  Entitlement to service connection for hypertension.

4.  Entitlement to service connection for bilateral hearing loss disability.

5.  Entitlement to service connection for tinnitus.  

6.  Entitlement to service connection for flat feet.

7.  Entitlement to service connection for migraine headaches.

8.  Entitlement to service connection for residuals of a vampire bat bite to the eye.

9.  Entitlement to service connection for residuals of spider bites.

10.  Entitlement to an initial evaluation in excess of 10 percent for lumbar spine degenerative disc disease.

11.  Entitlement to an initial compensable evaluation for tinea pedis.


REPRESENTATION

Appellant represented by:	John S. Berry, Attorney at Law


ATTORNEY FOR THE BOARD

J. Barone, Counsel


INTRODUCTION

The Veteran had active service from July 1987 to July 1991.

This matter comes before the Board of Veterans' Appeals (Board) from a July 2009 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Reno, Nevada.

The  issues of entitlement to service connection for a dental disability due to trauma and for obstructive sleep apnea have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over these issues and they are referred to the AOJ for appropriate action.  

The issues of entitlement to service connection for a heart disability, a gastrointestinal disability, hypertension, flat feet, and migraines, as well as higher initial evaluations for degenerative disc disease of the lumbar spine and tinea pedis, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The Veteran does not have bilateral hearing loss disability for VA compensation purposes.

2.  There is an approximate balance of positive and negative evidence as to whether the Veteran's tinnitus had its onset during service.

3.  There is no evidence of current residuals of a bat bite to the eye.

4.  There is no evidence of current residuals of spider bites.


CONCLUSIONS OF LAW

1.  Bilateral hearing loss disability was not incurred in or aggravated by service, and may not be presumed to have been so incurred or aggravated.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).

2.  Tinnitus was incurred in service.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012).

3.  Bat bite residuals were not incurred in or aggravated during service.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012).

4.  Spider bite residuals were not incurred in or aggravated during service.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).

On March 3, 2006, the Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. 
§ 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application.  Id. at 486.  

Letters dated in September and December 2008 discussed the evidence necessary to support a claim for service connection on both a direct and secondary basis.  The Veteran was invited to submit or identify pertinent evidence.  The evidence of record was listed and the Veteran was told how VA would assist him in obtaining additional relevant evidence.  These letters also informed the Veteran of the manner in which VA determines disability ratings and effective dates.  

The content of the notice provided to the Veteran fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify.  The Veteran and the appellant were been provided with every opportunity to submit evidence and argument in support of the claim and to respond to VA notices.  Further, the Board finds that the purpose behind the notice requirement has been satisfied because the Veteran and appellant were afforded a meaningful opportunity to participate effectively in the processing of the claims.  Therefore, the record reflects that the appellant was provided with a meaningful opportunity during the pendency of his appeal such that the preadjudicatory notice error did not affect the essential fairness of the adjudication now on appeal.

With respect to VA's duty to assist, service treatment records, VA treatment records, and private records have been obtained and associated with the record.  VA examinations were conducted.  The Board finds that the examinations were adequate in that they were performed by neutral, skilled providers who reviewed the record, interviewed the Veteran, and performed appropriate physical examinations prior to providing their conclusions.  With respect to the VA audiological examination the Board observes that in Martinak v. Nicholson, 21 Vet. App. 447 (2007), the Court noted that VA had revised its hearing examination worksheets to include the effect of the Veteran's hearing loss disability on occupational functioning and daily activities.  See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Veterans Apr. 24, 2007); see also 38 C.F.R. § 4.10 (2012).  The Court also noted that even if an audiologist's description of the functional effects of the Veteran's hearing disability was somehow deficient the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination.  In this case, neither the Veteran nor the appellant has asserted that there is any deficiency in the VA examination.  In any event, review of the examination report reflects that the Veteran was given an opportunity to report the impact of his hearing loss on his occupational functioning.  The appellant has not otherwise identified any additional evidence or information which could be obtained to substantiate the claims.  The Board is also unaware of any such outstanding evidence or information.  Therefore, the Board is also satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations.  

The Board acknowledges that the Veteran has not been afforded a VA medical examination in his claims of entitlement to service connection for spider and bat bite residuals.  In that regard, the Board finds that a VA examination is not necessary. There are two pivotal cases which address the need for a VA examination, Duenas v. Principi, 18 Vet. App. 512 (2004) and McLendon v. Nicholson, 20 Vet App. 79 (2006).  In McLendon, the Court held that in disability compensation claims, the Secretary must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim.  Id. at 81.  In Duenas, the Court held that a VA examination is necessary when the record: (1) contains competent evidence that the Veteran has persistent or recurrent symptoms of the claimed disability and (2) indicate that those symptoms may be associated with his active military service. 

Here, there is no competent evidence indicating residuals of the in-service bites.  As there is no competent evidence of a current disability or persistent or recurrent symptoms of a disability, the Board has concluded that a VA examination is not warranted in this case. 

For the foregoing reasons, it is not prejudicial to the Veteran for the Board to proceed to a final decision in this appeal.

Analysis

	Service Connection

As an initial matter the Board observes that there are records reflecting that the Veteran served in combat.  38 U.S.C.A. § 1154(b) (West 2002) provides that the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the Veteran.  Section 1154(b) does not create a statutory presumption that a combat Veteran's alleged disease or injury is service connected.  Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996).  Rather, it aids the combat Veteran by relaxing the adjudicative evidentiary requirements for determining what happened in service.  Id.   

Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty.  38 U.S.C.A. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303.  To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).   
Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  38 C.F.R. § 3.303(b).  If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim.  

Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).  However, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service."  Watson v. Brown, 4 Vet. App. 309, 314 (1993).

Service incurrence or aggravation of diseases of the central nervous system may be presumed to have been incurred or aggravated if it is manifested to a compensable degree within a year of the Veteran's discharge from service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a).  Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b). 

		Hearing Loss Disability and Tinnitus

For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.

The Board notes that the Court has observed that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 159 (1993).

Service treatment records are negative for any diagnosis, complaint, or abnormal finding suggestive of hearing loss or tinnitus.  On audiometric testing during the Veteran's enlistment examination in April 1987, the following puretone thresholds were elicited:





HERTZ



500
1000
2000
3000
4000

Right
15
20
15
20
30

Left
25
25
20
15
10


At that time, the Veteran denied hearing loss.  While he endorsed ear, nose, and throat trouble, he specified a history of sinusitis and rhinitis.  General examination of the Veteran's ears was normal.  The summary of defects and diagnoses did not include an reference to the Veteran's hearing acuity.  The examiner concluded that the Veteran was qualified for service, to include Airborne.  

On separation examination in July 1991, audiometric testing revealed the following puretone thresholds:


 



HERTZ



500
1000
2000
3000
4000

Right
10
0
5
10
10

Left
15
10
0
10
10


The examining physician did not include any findings referable to hearing loss or tinnitus in the summary of defects and diagnoses.  He determined that the Veteran was qualified for separation.

On VA general medical examination in October 2004, the examiner noted that the Veteran's hearing appeared good.  There were no perforations and no discharge.  

In his June 2008 claim, the Veteran indicated that he was exposed to airplanes, gunfire, and explosions during service.  He noted that he had lived with the condition.  He also noted that he had an irritating, high pitched sound in his ears.  

A January 2009 VA treatment record indicates that hearing aids were issued to the Veteran.

A VA audiological examination was conducted in April 2009.  The Veteran reported that he could not understand conversation and had difficulty monitoring the volume of his own voice.  He noted that his problems were worse in the presence of background noise, and that they caused difficulty in both his private life and work.  He indicated that he had been exposed to various weapons and aircraft during service, and that hearing protection use was not enforced.  He related that his post-service employment include working at a gun range, but that hearing protection was required and worn.  He endorsed tinnitus with onset during service.  Audiometric testing revealed the following puretone thresholds:

 



HERTZ



500
1000
2000
3000
4000

Right
20
25
15
30
30

Left
25
25
30
25
30


Speech recognition scores were 96 percent bilaterally.  The examiner concluded that hearing loss and tinnitus were less likely as not a result of noise exposure in service.  She reasoned that separation hearing thresholds were within normal limits bilaterally, and had improved significantly from enlistment.  She noted that although it was unlikely, the possibility of examiner error, ambient noise, and/or equipment malfunction should be considered as a reason for the improvement in hearing thresholds from enlistment to discharge.  She pointed out that hearing thresholds on VA examination were similar, though not the same, as those found on enlistment audiogram.

Upon review of the evidence pertaining to this issue, the Board has determined that service connection for tinnitus is warranted.  In this regard, the Board observes that tinnitus has been variously defined.  It is a noise in the ears, such as ringing, buzzing, roaring, or clicking.  YT v Brown, 9 Vet. App. 195, 196 (1996).  It is a ringing, buzzing noise in the ears.  Kelly v. Brown, 7 Vet. App. 471, 472 (1995).  In Charles v. Principi, 16 Vet. App. 370, 374-375 (2002), the U.S. Court of Appeals for Veterans Claims (Court) specifically held that tinnitus is a condition which is capable of lay observation.  See also Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).

The Veteran has stated that his tinnitus had its onset during service.  Notably, this Veteran is shown to have served with the 82nd Airborne Division and participated in two combat tours.  The service treatment records are negative for any complaint or abnormal finding pertaining to tinnitus; however, the Board notes that the medical history form completed in conjunction with physical examinations does not reference tinnitus or ringing in the ears.  Furthermore, there is no clinical test for tinnitus.  The Veteran has stated that onset of tinnitus was during service, and that he has experienced tinnitus symptoms since that time.  For these reasons, and given the subjective nature of tinnitus, the Board finds that the Veteran's lay contentions are sufficient to place the evidence at least in equipoise.  Accordingly, service connection for tinnitus is warranted.  

The Board has also concluded that service connection for bilateral hearing loss disability is not warranted.  In that regard, the Board notes that the grant of service connection requires competent evidence to establish a diagnosis of the claimed disability.  Moreover, as discussed above, VA regulations require that hearing loss be reported at a certain level before it will be considered a disability for compensation purposes.  In this case, the evidence currently associated with the record demonstrates that the Veteran does not have bilateral hearing loss disability for VA compensation purposes.  The Board acknowledges the Veteran's report that he has experienced a decrease in hearing acuity; however, in the absence of proof of a present disability as defined by VA regulations, there can be no valid claim for service connection.  Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer  v. Derwinski, 3 Vet. App. 223, 225 (1992).  Accordingly, the claim of entitlement to service connection for bilateral hearing loss disability must be denied.  The preponderance of the evidence is against the claim, and the benefit of the doubt doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).

		Residuals of Bat and Spider Bites

Service treatment records reflect that the Veteran was treated for an insect bite in June 1988 on his right hand.  He complained of numbness and pain.  He denied shortness of breath.  The assessment was questionable sting from scorpion or spider.  The following day, the Veteran again presented for treatment, stating that he suspected that the bite was from a tarantula.  His hand was swollen, red, and tender.  

In August 1988, the Veteran reported that he was sleeping without using a mosquito net, and that he was bitten by a bat on his right upper eyelid.  The provider noted a puncture wound.  

On separation examination in July 1991, the Veteran's skin was normal, as was his face.  

VA treatment records dated in July 2007 and August 2008 note that the Veteran's skin was normal.

In his October 2008 claim, the Veteran described having been treated for bat and tarantula bites while he was in Panama.  

Having reviewed the evidence of record, the Board concludes that service connection is not warranted for residuals of the in-service insect and bat bites.  The grant of service connection requires competent evidence to establish a diagnosis and relate the diagnosis to the Veteran's service.  While the record reflects that the Veteran sustained bites during service, it does not show that he has residuals of those bites.  In that regard, the Board observes that although the Veteran has been advised of the evidence necessary to support a claim of entitlement to service connection for the claimed residuals, he has neither identified nor submitted evidence of any residuals associated with the bites documented during service. 

The Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of lack of contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331   (Fed. Cir. 2006).  In this case, however, the Veteran does not allege symptoms related to the documented bites in the years following his separation from service.  Rather, he has merely described the in-service incidents without identifying any specific disabling residuals.  Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.  In the absence of proof of a present disability, there can be no valid claim.  Brammer.

In summary, the Board has considered the record and the Veteran's assertions, and finds that the preponderance of the evidence is against these claims of entitlement to service connection.  Consequently, the doctrine of reasonable doubt is not applicable in the instant appeal.  38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert.  

	 	 

ORDER

Entitlement to service connection for bilateral hearing loss disability is denied.

Entitlement to service connection for tinnitus is granted.

Entitlement to service connection for residuals of a vampire bite to the eye is denied.

Entitlement to service connection for residuals of spider bites is denied.


REMAND

	Service Connection for Heart and Gastrointestinal Disabilities

The Veteran seeks service connection for a heart disability and a gastrointestinal disability as secondary to his service-connected PTSD.  He has submitted various articles supporting a relationship between these claimed disabilities and PTSD.  As there is evidence of current disabilities and a suggestion that such might be related to the Veteran's PTSD, the Board concludes that VA examinations are necessary to determine whether a cardiovascular or gastrointestinal disability is related to the service-connected PTSD.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). 

With respect to the Veteran's claimed hypertension, the Board notes that on VA examination in September 2010, the Veteran reported that hypertension was diagnosed in 1991, following his separation from service.  The Veteran should be requested to submit or identify any evidence that would show such a diagnosis as early as 1991.  

	
      
Service Connection for Flat Feet

A Veteran will be considered to have been in sound condition when examined, accepted, and enrolled for active service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service.  Only such conditions as are recorded in examination reports are to be considered as noted.  38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b).

A pre-existing injury or disease will be considered to have been aggravated by active military, naval or air 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. § 1153; 38 C.F.R. § 3.306(a). Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying disability, as contrasted to the symptoms of that disability, has worsened.  See Crowe v. Brown, 7 Vet. App. 238, 247-48   (1994); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991).  Clear and unmistakable evidence (obvious and manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service.  38 C.F.R. § 3.306(b).

Service treatment records indicate that on enlistment examination in April 1987, mild, asymptomatic pes planus was noted.  In his June 2009 claim, the Veteran specified that he sought service connection for flat feet, indicating that his feet were painful.  In January 2009, the Veteran stated that he was on airborne status and made numerous jumps.  The question of whether the Veteran's flat feet were aggravated by service has not been addressed with a medical examination.  In light of evidence of pes planus at service entrance, and the Veteran's report of pain during and since service, the Board finds that a VA examination is warranted to determine whether the pre-existing pes planus was aggravated by service.  


	Service Connection for Headaches

In a January 2009 statement, the Veteran described headaches that began in 1991.  In the Veteran's representative pointed out that the Veteran's competent lay observation triggered VA's duty to assist by providing him an examination.  VA treatment records indicate complaints of headaches.  As the Veteran is competent to report headaches beginning in 1991 and continuing to the present, and there is current evidence reflecting complaints of headaches, the Board concludes that a VA examination is warranted to determine the nature and etiology of the claimed headache disability.

	Evaluation of Lumbar Spine Disability

The Veteran was most recently afforded a VA examination for his low back disability in March 2009.  The examiner reported range of motion of the thoracolumbar spine and noted that there was objective evidence of pain on active range of motion; however, he did not identify the point at which the Veteran had pain.  See DeLuca v. Brown, 8 Vet. App. 202   (1995).  Therefore, this examination is inadequate for the purpose of evaluating the Veteran's low back disability, and a new examination is necessary.  In this regard, the Board notes that once VA provides an examination, it must be adequate or VA must notify the Veteran why one will not or cannot be provided.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 

      Evaluation of Tinea Pedis

The Veteran is currently assigned a noncompensable rating for his service-connected tinea pedis under 38 C.F.R. § 4.118, Diagnostic Code 7813-7806.  Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned.  The additional code is shown after a hyphen.  38 C.F.R. § 4.27 (2012).  Diagnostic Code 7813 directs that tinea pedis be rated under the criteria for scars or for dermatitis, depending on the predominant disability.  

The Veteran was afforded a VA skin examination in March 2009.  This examination described the condition of the Veteran's feet, but did not indicate whether any associated scarring was present.  Because the pertinent diagnostic code directs that tinea pedis might be rated under the criteria for scars, the Board concludes that the March 2009 examination is inadequate for the purpose of evaluating the Veteran's foot disability.  An additional examination is necessary to assess whether the Veteran's tinea pedis includes scarring that might be compensably evaluated under the appropriate criteria.  See Barr.

In light of the above discussion, the Board has determined that additional development is necessary.  Accordingly, the case is REMANDED for the following action:

1. Contact the Veteran and request that he submit or identify any treatment records showing a diagnosis of hypertension in 1991.  He should be asked complete an appropriate release for any identified non-VA treatment.  Obtain records for all identified treatment and associate them with the claims file or Virtual VA eFolder, as appropriate.  

If VA is unable to secure any identified records, it must notify the appellant and (a) identify the specific records VA is unable to obtain; (b) briefly explain the efforts that VA made to obtain those records; (c) describe any further action to be taken by VA with respect to the claim; and (d) notify him that he is ultimately responsible for providing the evidence.  38 U.S.C.A. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e)(1) (2012).

2.  Schedule a VA cardiology examination with a physician  who has the requisite expertise to determine the etiology of the Veteran's heart disease and hypertension.  The claims folder should be forwarded to the examiner for review.  The examiner should be directed to elicit a complete history from the Veteran, the pertinent details of which should be recited in the examination report.  

All necessary testing should be conducted, the results of which should be detailed in the examination report.

Following examination, interview of the Veteran, and review of the claims file, the examiner should provide an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that any current heart disease or hypertension is related to any disease or injury in service, or was either caused or aggravated by the Veteran's service-connected PTSD.

If it is found that the heart disease or hypertension was aggravated by PTSD, a determination as to the baseline and current levels of severity should be reported, to include a determination as to the extent of aggravation by deducting the baseline level of severity, to the extent possible.

The examiner should provide a discussion of the complete rationale for any conclusion provided.  

If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge.  See Jones v. Shinseki, 23 Vet. App. 382 (2010). 

3.  Schedule a VA gastrointestinal examination with a physician  who has the requisite expertise to determine the etiology of any currently present gastrointestinal disability.  The claims folder should be forwarded to the examiner for review.  The examiner should be directed to elicit a complete history from the Veteran, the pertinent details of which should be recited in the examination report.  

All necessary testing should be conducted, the results of which should be detailed in the examination report.

Following examination, interview of the Veteran, and review of the claims file, the examiner should identify all currently present gastrointestinal disorders.  With respect to each currently present gastrointestinal disorder, the examiner should provide an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that such disorder is related to any disease or injury in service, or was either caused or aggravated by the Veteran's service-connected PTSD.

If it is found that any currently present gastrointestinal disorder was aggravated by PTSD, a determination as to the baseline and current levels of severity should be reported, to include a determination as to the extent of aggravation by deducting the baseline level of severity, to the extent possible.

The examiner should provide a discussion of the complete rationale for any conclusion provided.  

If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge.  See Jones v. Shinseki, 23 Vet. App. 382 (2010). 

4.  Schedule the Veteran for an appropriate VA examination to determine whether the pre-existing pes planus was permanently aggravated beyond normal progression by service.  The claims folder should be forwarded to the examiner for review.  The examiner should be directed to elicit a complete history from the Veteran.  All indicated studies should be performed, and their results reported.  

Following review of the claims file and examination of the Veteran, the examiner should provide an opinion regarding whether there is clear and unmistakable evidence that the Veteran's pre-existing pes planus DID NOT increase in severity beyond the natural progression of the disability during active duty (i.e. the disorder was not aggravated by service). 

In providing answers to the above inquiry, the examiner should be advised that aggravation means a chronic worsening of the underlying condition, as opposed to a temporary flare-up of symptoms.

A discussion of the complete rationale for all opinions expressed should be included in the examination report.  

If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge.  See Jones v. Shinseki, 23 Vet. App. 382 (2010). 

5.  Schedule the Veteran for a VA examination to determine the etiology of his claimed headache disability. The claims folder should be forwarded to the examiner for review, and the examiner should be directed to elicit a complete history from the Veteran, the pertinent details of which should be recited in the examination report. 

Following examination, interview of the Veteran, and review of the claims file, the examiner should indicate whether there is a current headache disability.  If so, the examiner should provide an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) headache disability is related to any disease or injury in service. 

A discussion of the complete rationale for all opinions expressed should be included in the examination report, to include reference to pertinent evidence where appropriate. 

If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge.  See Jones v. Shinseki, 23 Vet. App. 382 (2010). 

6.  Schedule the Veteran for a VA examination to determine the severity of his service-connected low back disability.  Any and all studies, tests and evaluations deemed necessary by the examiner should be performed.  The examiner should also elicit a complete history from the Veteran, the pertinent details of which should be included in the examination report.

The examiner's report should fully set forth all current complaints and pertinent clinical findings, and should describe in detail the presence or absence and the extent of any functional loss due to the Veteran's service-connected lumbar spine disability.  In particular, the examiner should indicate the point during range of motion testing that motion is limited by pain. 

Consideration should be given to any loss due to reduced or excessive excursion, or due to decreased strength, speed, or endurance, as well as any functional loss due to absence of necessary structures, deformity, adhesion, or defective innervation.  In particular, the examiner should comment on any functional loss due to weakened movement, excess fatigability, incoordination, or pain on use, and should state whether any pain claimed by the Veteran is supported by adequate pathology, e.g., muscle spasm, and is evidenced by his visible behavior, e.g., facial expression or wincing, on pressure or manipulation.  The examiner's inquiry in this regard should not be limited to muscles or nerves, but should include all structures pertinent to movement of the joint.

The examiner's report should include a description of the above factors that pertain to functional loss due to the lumbar spine disability that develops on repetitive use or during flare-up. 

Based on current examination of the Veteran as well as review of the evidence of record to include post service treatment reports and prior physical examinations of the Veteran, the examiner must express an opinion as to whether pain or other manifestations occurring during flare-ups or with repeated use could significantly limit functional ability of the affected part.  The examiner should portray the degree of any additional range of motion loss due to pain on use or during flare-ups.  As noted by the Court in its memorandum decision, if flare-ups are not observed during the examination, the examiner should refer to earlier medical records and to the Veteran's lay statements to determine the severity of his flare-ups, and portray additional lost range of motion during such flare-ups.

The examiner should identify any currently present neurologic deficit caused by the Veteran's lumbar spine disability, and indicate the current severity of such neurologic manifestations.

The examiner should describe the duration during the previous year of any incapacitating episodes caused by the disability.

A discussion of the complete rationale for all opinions expressed should be included in the examination report.

If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge.  See Jones v. Shinseki, 23 Vet. App. 382 (2010). 

7.  Schedule the Veteran for a VA examination to determine the severity of his service-connected tinea pedis.  Any and all studies, tests and evaluations deemed necessary by the examiner should be performed.  The examiner should also elicit a complete history from the Veteran, the pertinent details of which should be included in the examination report.

The examiner's report should fully set forth all current complaints and pertinent clinical findings, and should describe in detail the presence of all scars or disfigurement associated with tinea pedis.  

A discussion of the complete rationale for all opinions expressed should be included in the examination report.

If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge.  See Jones v. Shinseki, 23 Vet. App. 382 (2010). 

8.  The Veteran is hereby notified that it is his responsibility to report for any examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 , 3.655. 

9.  Readjudicate the Veteran's claims, with application of all appropriate laws, regulations, and case law , and consideration of any additional information obtained as a result of this remand.  If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. 

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. 2012).




______________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs