Citation Nr: 1304649 Decision Date: 02/08/13 Archive Date: 02/19/13 DOCKET NO. 10-32 964 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for stress fracture of the left foot. 2. Entitlement to service connection for residuals of right knee injury. 3. Entitlement to service connection for hypertension. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran had active service from August 1999 to December 2003. This matter comes before the Board of Veterans' Appeal (Board) on appeal from a January 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge sitting at the local RO. A copy of the hearing transcript has been associated with the claims file. The Veteran submitted additional evidence at the Board hearing along with a waiver of agency of original jurisdiction (AOJ) consideration of such evidence. 38 C.F.R. § 20.1304(c) (2012). Therefore, the Board may properly consider such newly received evidence. At the hearing, the record was held open for 60 days until September 26, 2012, so that the Veteran could submit additional evidence. In October 2012 and November 2012, the Veteran submitted additional evidence concerning the severity of his service-connected left foot disability. While the Veteran did not specifically waive AOJ consideration of such statements, the Board observes that in a February 2012 statement, the Veteran waived his right to have his case remanded to the AOJ for review of any additional evidence and requested that the Board review all new evidence. Therefore, the Board may properly consider such newly received evidence. The Board has also reviewed the Veteran's Virtual VA electronic record. The majority of the records are duplicative of evidence already in the claims file, with the exception of an August 2012 VA disability benefits questionnaire. Nevertheless, although this evidence was not considered by the RO in conjunction with the current claim, this record addresses an unrelated disorder and is not pertinent to the issue on appeal. Therefore, there is no prejudice to the Veteran in the Board proceeding with a review of his claims. The issue of entitlement to an initial higher rating for stress fracture of the left foot is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. Resolving all doubt in favor of the Veteran, right knee strain is etiologically related to a right knee injury he sustained during his military service. 2. Resolving all doubt in favor of the Veteran, hypertension is etiologically related to his in-service elevated blood pressure readings and the stress of his service in Southwest Asia. CONCLUSIONS OF LAW 1. The criteria for a grant of service connection for right knee strain have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. The criteria for a grant of service connection for hypertension have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As the Board's decision to grant service connection for right knee strain and hypertension herein constitutes a complete grant of the benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis and hypertension, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Residuals of Right Knee Injury The Veteran is seeking service connection for residuals of a right knee injury. Service treatment records showed that he reported right knee pain in March 2001. Follow up treatment records continued to show complaints of right knee pain. Importantly, a November 2002 record showed an assessment of retropatellar pain syndrome (RPPS), rule out meniscal injury. However, a March 2003 record showed just an assessment of RPPS with irritated plica. Service treatment records also showed that the Veteran underwent physical therapy for his right knee. The Veteran was also put on a physical profile in December 2001 and March 2003 for his right knee pain. Nevertheless, a December 2003 service examination prior to discharge was silent with respect to any findings pertaining to the right knee and the Veteran expressly denied any knee problems in his contemporaneous medical history. The Veteran filed his claim for residuals of a right knee injury in May 2009. He was afforded a VA examination in September 2009. It does not appear that the claims file was reviewed, but the Veteran gave a history of injuring in knee in service. Range of motion testing showed reduced flexion with pain. However, a contemporaneous x-ray showed no acute process. The examiner diagnosed right knee injury with residual, but gave no further diagnosis or etiological opinion. In support of his claim, the Veteran submitted numerous lay statements dated in July 2012. One of the statements was from a fellow service member and indicated that he recalled the Veteran having problems with his right knee in service. The remaining statements were from friends or co-workers who attested to the fact that the Veteran had complained of right problems since service. The Veteran also submitted an August 2012 private treatment record from Scott and White that showed an assessment of right knee strain. At the Board hearing, the Veteran testified that he injured his right knee in service and at one point, there was a discussion of a possible meniscus tear. He stated that he was put on physical profile while in service. Although he had not had any treatment since service, he reported that his right knee symptoms had continued since his discharge. He experienced pain and also currently wore a brace. Therefore, based on the totality of evidence of record, when resolving the benefit of the doubt in favor of the Veteran, the Board finds that service connection for residuals of right knee injury, diagnosed as right knee strain, is warranted. The Veteran clearly complained of right knee pain on multiple occasions while in service. Service treatment records also document a diagnosis of assessment of RPPS and note that he was put on physical profile as well as underwent physical therapy. Moreover, the Board finds that the Veteran's competent statements of pertinent symptomatology since service to be credible. He has essentially been consistent throughout the course of the appeal when describing the right knee pain in service as well as when reporting a continuity of symptoms since service. Additional lay statements of record from other persons support the Veteran's assertions that he had continued to experience right knee problems since service. See 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Importantly, the VA examiner indicated that the Veteran had residuals from the right knee injury and more recently a private record showed an assessment of right knee strain. Moreover, the Veteran is competent to report lay observable symptoms, such as pain and restricted motion, pertaining to his right knee. Therefore, the Board finds that the evidence does show that the Veteran suffers from current residuals from the right knee injury in service, which has been diagnosed as right knee strain. In sum, given the documented incidents in service, the fact that the Veteran has continually complained of right knee pain beginning in service, and the present medical evidence of a diagnosed right knee disability, the Board finds that the record shows a continuity of pertinent symptomatology to link the Veteran's current disability to active service. Thus, service connection for right knee strain is warranted. The Board notes that in reaching this conclusion, the evidence is at least in equipoise, and the benefit of the doubt doctrine has been applied where appropriate. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Hypertension The Veteran is also seeking service connection for hypertension. A private hospital record dated in July 2000, while the Veteran was on active service, showed that blood pressure readings were 145/86 and 142/91. A service treatment record in January 2003 showed a blood pressure reading of 162/100. Significantly, the Veteran's December 2003 discharge examination showed that the Veteran's blood pressure readings were 146/86, 144/96 and 146/84. However, although it appears that the Veteran had elevated blood pressure readings during service, no diagnosis of hypertension was made. The Board also observes that the Veteran's DD 214 service personnel record showed that he served in the Southwest Asia Theatre of Operations from April 2001 to August 2001. The Veteran filed his current claim for hypertension in August 2009. Private treatment records from Scott and White showed that the Veteran presented to initiate care in February 2008. At that time, his blood pressure was 151/93. The diagnosis was elevated blood pressure. A follow up treatment record that same month showed a diagnosis of hypertension and it appears that in February 2009, he was placed on blood pressure medication. The Veteran has not been afforded a VA examination with respect to this issue. However, in support of his claim, he submitted an August 2012 private opinion from his treating physician. The physician indicated that the Veteran had elevated blood pressure. His blood pressure problems began overseas in Kuwait. The physician opined that it was likely that the stress of that experience led to his hypertension. At the Board hearing, the Veteran testified that he had high blood pressure in service, but he was actually diagnosed in 2009. Importantly, he did describe an instance in November 2004 when high blood pressure was found after he was involved in a "use of force" incident. The Board finds that when resolving the benefit of the doubt in favor of the Veteran, service connection for hypertension is warranted. Records during service and at discharge clearly show elevated blood pressure readings. The Veteran testified that, in November 2004, within one year of his discharge, high blood pressure was found on examination. Although this medical record is not available, the Board has no reason to doubt the Veteran's credibility given that the incident described would be within his responsibilities as a corrections officer. See Jandreau. Importantly, an August 2012 private opinion linked his current hypertension to service. Although the physician did not review the Veteran's service treatment records, he was aware of the Veteran's history of elevated blood pressure readings in service and his overseas tour in the Southwest Asia Theatre of Operations. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (held that it was the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion) Therefore, the record documents elevated blood pressure readings in service, the Veteran has a current diagnosis of hypertension, and an August 2012 private opinion links the current disability to service. Accordingly, when resolving the benefit of the doubt in favor of the Veteran, the Board must conclude that the evidence is in at least a state of equipoise and service connection for hypertension is warranted. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for right knee strain is granted. Service connection for hypertension is granted. REMAND The Veteran is claiming that the severity of his left foot stress fracture warrants a higher evaluation. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Veteran was most recently afforded a VA examination in September 2009. However, at the July 2012 Board hearing, the Veteran testified that the severity of his left foot disability had increased since the September 2009 examination. He reported that his disability interfered with his ability to work because of the pain he experienced when standing and walking. He also indicated that his private examiner had characterized his left foot disability as moderately severe to severe. Further, after the hearing, the Veteran submitted additional evidence showing that he had missed work due to his left foot disability. While a new examination is not required simply because of the time which has passed since the last examination, VA's General Counsel has indicated that a new examination is appropriate when there is evidence of an increase in severity since the last examination. VAOPGCPREC 11-95 (1995). Thus, based on the Veteran's hearing testimony and the additional evidence, the Board finds that a new VA examination is necessary to determine the current severity of the Veteran's left foot stress fracture. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Moreover, at the Board hearing, the Veteran testified that he received private treatment for his service-connected left foot disability from Dr. Poling at Scott and White. He also submitted an October 2012 letter from his physician's office indicating that he was excused from work that month. Although some of the Veteran's private treatment records were associated with the claims file in September 2009, as it appears that the Veteran has received more recent treatment, the AOJ should contact the Veteran to obtain appropriate authorization so that these records can be obtained. See 38 C.F.R. § 3.159(c)(1). Accordingly, the case is REMANDED for the following actions: 1. The AOJ should contact the Veteran and obtain appropriate authorization so that additional private treatment records for Dr. Poling at Scott and White may be obtained. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, such should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After obtaining any additional treatment records, the Veteran should be afforded an appropriate VA examination to determine the current nature and severity of his service-connected left foot stress fracture. The claims file must be made available to the examiner for review in connection with the examination. Any medically indicated tests, such as x-rays, should be accomplished. Examination findings should be reported to allow for application of pertinent rating criteria for foot disabilities. The examiner should specifically determine whether the Veteran's left foot disability should be characterized as moderate, moderately severe, or severe. The examiner should address the impact that the Veteran's left foot disability has on his employability. A rationale should be provided for any opinion offered. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matter 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 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). ______________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs