Citation Nr: 1307649 Decision Date: 03/07/13 Archive Date: 03/11/13 DOCKET NO. 00-12 506 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for tinea pedis ("Athlete's foot") affecting both feet. 2. Entitlement to service connection for Dupuytren's contracture of the hands and wrists (claimed as a bilateral hand and right wrist condition). 3. Entitlement to service connection for degenerative joint disease. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD M. Zawadzki, Counsel INTRODUCTION The Veteran had active military service from June 1978 to August 1993. This appeal to the Board of Veterans' Appeals (Board/BVA) is from March and September 1999 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In a February 2008 decision since issued, the Board denied the appeal for a disability rating higher than 20 percent for duodenal ulcer disease with hiatal hernia, but granted service connection for major depressive disorder with anxiety and panic attacks secondary to this service-connected duodenal ulcer disease disability. The Board remanded the remaining claims on appeal to the RO via the Appeals Management Center (AMC) in Washington, DC, primarily to ensure due process and so the AMC or RO could consider additional evidence that had been submitted. In May 2008, in implementing the Board's partial grant of the appeal, the RO assigned an initial 50 percent rating for the major depressive disorder with anxiety and panic attacks, retroactively effective from February 13, 1998. The Veteran did not, in response, separately appeal either that initial rating or effective date, so that claim is no longer at issue. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Concerning the remaining claims, a May 2008 supplemental statement of the case (SSOC) continued to deny these claims. In an April 2009 decision the Board denied service connection for a chronic dental disability and a temporary total (100 percent) convalescent rating under 38 C.F.R. § 4.30. The Board, however, again remanded the remaining claims on appeal to the RO via the AMC. A January 2011SSOC continued to deny these claims. In a January 2012 decision, the Board found that new and material evidence had been submitted to reopen a claim for service connection for tinea pedis affecting both feet and granted service connection for bronchitis. But rather than immediately readjudicating the claim for tinea pedis on its underlying merits, the Board instead remanded this reopened claim, as well as the claims for service connection for Dupuytren's contracture of the hands and wrists and for degenerative joint disease, to the RO via the AMC for additional development, specifically, to obtain additional medical opinions. After obtaining additional medical opinions, a March 2012 SSOC continued to deny these claims, so they are again before the Board. The Board also sees that, in January 2012, in implementing the Board's partial grant of the appeal, as concerning the claim for service connection for bronchitis, the AMC assigned an initial 0 percent (noncompensable) rating for this disability, retroactively effective from May 6, 1999. The Veteran did not, in response, separately appeal either this initial rating or effective date, so this claim also is no longer at issue. See Grantham, supra. In deciding these remaining claims that are still at issue, the Board has reviewed the contents of the Veteran's electronic ("Virtual VA") file, in addition to the evidence in his physical claims file. And as will be discussed in the REMAND below, the Virtual VA file indicates there is additional evidence in VA's possession - constructive if not actual - which is potentially pertinent to these claims on appeal but that is not currently associated with the record before the Board for consideration, hence, the need to incorporate these additional records into the file. Consequently, the Board is again remanding the claims to the RO via the AMC. The Virtual VA e-folder reflects that, in a January 2010 rating decision, the RO denied service connection for non-Hodgkin's lymphoma (NHL). An April 2010 letter from the RO to the Veteran, also contained in the e-folder, indicates the RO had received his notice of disagreement (NOD) with that January 2010 decision. But neither the actual NOD, nor any statement of the case (SOC), is available for the Board's review in either the paper claims file or the Virtual VA e-folder. While the Veterans Appeals Contact and Locator System (VACOLS) indicates the RO has issued an SOC and the Veteran has filed a substantive appeal (VA Form 9) regarding this claim, neither the SOC nor the substantive appeal are available for the Board's review in either the paper claims file or the Virtual VA e-folder. Thus, this claim is not listed as an issue certified as on appeal, as would be reflected on a VA Form 8, although the Veteran apparently has completed the steps necessary to perfect his appeal of this claim to the Board. See 38 C.F.R. § 20.200 (2012) (an appeal to the Board consists of a timely filed NOD in writing and, after receipt of an SOC, a timely filed substantive appeal). REMAND The Board sincerely regrets the additional delay that inevitably will result from this additional remand of the claims, but it is necessary to ensure there is a complete record and so the Veteran is afforded every possible consideration. The claims file indicates there are outstanding VA treatment records that are potentially pertinent to the claims for service connection for degenerative joint disease and tinea pedis. The Veteran's most recent VA treatment record in the claims file, dated in May 2010, reflects that he had diagnoses including osteoarthritis and lumbago on November 30, 2000, and a diagnosis of tinea pedis on November 7, 2006. While treatment records from the San Juan VA Medical Center (VAMC) dated from August 1993 to August 2000, from August 2002 to June 2006, and from November 2006 to May 2010 have been associated with the claims file, these in particular dated on November 30, 2000 and November 7, 2006 are not currently of record. As any outstanding records of VA treatment are potentially pertinent to the appeal and within the control of VA, they should be obtained and associated with the claims file for consideration. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, on remand, the AMC/RO should associate with the claims file all pertinent treatment records from the San Juan VAMC dated between August 2000 and August 2002 (to especially include any record of treatment dated on November 30, 2000) and dated between June and November 2006 (to especially include any record of treatment dated on November 7, 2006). Additionally, review of the Veteran's Virtual VA e-folder also reflects that, in a January 2010 rating decision, the RO denied service connection for NHL. A copy of the January 2010 rating decision contained in the Virtual VA e-folder has not been associated with the paper claims file. While the January 2010 rating decision is available for the Board's review in the Veteran's Virtual VA e-folder, this e-folder does not include all of the evidence considered in that rating decision. The evidence considered in that January 2010 rating decision included statements from the Veteran in support of his claim, dated from March 13, 2008 through May 5, 2009; memoranda from his representative, dated from March 13, 2008 through May 5, 2009; a lay statement dated May 1, 2009; and medical records from several private healthcare providers. These pieces of evidence are not currently available for the Board's review in either the paper claims file or Virtual VA e-folder. While the statements from the Veteran, the memoranda from his representative, the lay statement, and the private medical records most likely pertain to the Veteran's NHL (as opposed to the claimed disabilities currently on appeal), without being able to review this evidence, the Board is unable to ascertain whether it may also contain information pertinent to any of the claims currently on appeal. Similarly, the Veteran's e-folder includes a May 2010 rating decision in which the RO continued a 0 percent rating for his bilateral hearing loss. The evidence considered in that decision included his March 2010 claim for increase, VA treatment reports dated from February 1999 through April 2010, and the report of an April 2010 VA audiology examination. While, as noted above, treatment records from the San Juan VAMC, dated from August 1993 to August 2000, from August 2002 to June 2006, and from November 2006 to May 2010, have been associated with the claims file, the March 2010 claim for increase and the April 2010 VA audiology examination report have not. Although it is likely these pieces of evidence pertain only to the Veteran's service-connected bilateral hearing loss disability, the Board is unable to ascertain whether these pieces of evidence may also contain information pertinent to any of the claims currently on appeal without being able to review them. Further, in a May 2011 rating decision contained in the e-folder, the RO granted service connection for right and left knee patellofemoral dysfunction. Evidence considered in that decision included the Veteran's November 2010 supplemental claim for compensation, the report of an April 2011 VA joints examination, and treatment records from the San Juan VAMC dated from May 2010 through May 2011. None of these pieces of evidence are included in the paper claims file or the Virtual VA e-folder. This evidence, in particular the additional VA treatment records, may be pertinent to the claims currently on appeal. The Veteran's e-folder also includes a December 2011 rating decision in which the RO granted a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) as well as increased ratings for major depressive disorder with anxiety and panic attacks and for duodenal ulcer disease with hiatal hernia. The RO continued 10 percent ratings for right and left knee degenerative joint disease/chondromalcia patella. The RO also continued a 10 percent rating for tinnitus, a 0 percent rating for bilateral hearing loss, established basic eligibility to Dependents' Educational Assistance, and proposed a finding of incompetency. The evidence considered in that rating decision included a June 2011 memorandum from the Veteran's representative, a November 2011 VA audiology examination, an October 2011 VA esophagus and hiatal hernia examination, an October 2011 VA general medical examination, a November 2011 VA mental disorder examination, and treatment records from the San Juan VAMC, dated from February 1999 through November 2011 (which were reviewed but not printed). This evidence, also, is not included in the paper claims file or the Virtual VA e-folder. However, this evidence, in particular the additional VA treatment records, may be pertinent to the claims currently on appeal. It follows then that, on remand, the AMC/RO must obtain and associate with either the paper claims file or the Veteran's Virtual VA e-folder the evidence relied on in the January 2010, May 2010, and May 2011, and December 2011 rating decisions. Additionally, the January 2010 and December 2011 rating decisions reflect that the rating decisions had been completed with a temporary folder. No temporary folders are currently available for the Board's review. Thus, on remand, the AMC/RO should also associate any temporary folders in VA's possession with the claims file. Additionally, regarding the claim for service connection for Dupuytren's contracture of the hands and wrists (claimed as a bilateral hand and right wrist condition), the Board noted in its April 2009 remand that service treatment records showed the Veteran had received treatment for right wrist pathology that included a ganglion cyst, and De Quervains right wrist was considered as a possible diagnosis. Post-service VA records showed treatment for bilateral wrist pathology, including degenerative changes and Dupuytren's contractures. The Board, thus, directed in April 2009 that the Veteran be scheduled for a VA orthopedic examination to obtain a medical nexus opinion indicating whether it was at least as likely as not that his current right wrist and hand disorders, including Dupuytren's contractures, were attributable to his military service. The Veteran was afforded a VA examination in September 2009. He reported that his right hand pain and stiffness had started around 1983 to 1984 due to constant physical exertion while handling heavy armory. After examining the Veteran, the examiner opined that the current right wrist and hand disorders, including Dupuytren's contractures, were not attributable to the Veteran's military service. The rationale for this opinion was that the cause for development of Dupuytren's contractures or disease in a patient was unknown. The examiner explained that only some risk factors had been associated with its development, including family history, tobacco and alcohol use, and diabetes. He added that the tendonitis in the Veteran's right wrist appeared to be secondary to his hand condition. In January 2012, the Board found this opinion to be inadequate, noting that, even if the cause of Dupuytren's contracture was unknown, the question remained as to whether this condition dated back to the Veteran's military service. The claim therefore was remanded to obtain a supplemental medical opinion concerning the likelihood that the Veteran's current right wrist and hand disorders, including especially his Dupuytren's contractures, were attributable to his military service or dated back to his service. The Board noted that, even if the cause of Dupuytren's contractures was unknown, there still needed to be some comment on the possibility of this condition dating back to the Veteran's service or regarding his claim of having continuously experienced symptoms of this condition since service. The Veteran resultantly underwent another VA examination in February 2012. The examiner noted the Veteran had been diagnosed with Dupuytren's contracture in 2009 and had been diagnosed with arthritis of the hands and wrist by bone scan in December 2006. The examiner opined that the Veteran's current right wrist and hand disorders, especially his Dupuytren's contracture, were less likely than not attributable to his military service. In providing rationale for this opinion, the examiner stated that, even though the Veteran was seen by an orthopedic surgeon in 1983 and referred to a hand surgeon where his ganglion cyst was aspirated, there was no evidence of treatment or complaint up to several years after his discharge, indicating the condition in service was acute and transitory and resolved with military treatment. The February 2012 VA examiner's opinion was based on there being no complaint regarding the right wrist and hands up to several years after the Veteran's discharge from service. However, the claims file reflects that, on VA examination in October 1993, so just approximately two months after separation from service, the Veteran complained of pain in his hand joints. Because VA endeavored to obtain a medical opinion to evaluate this claimed disability of the hands and right wrist, the Board must ensure the opinion obtained is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Stefl v. Nicholson, 21 Vet. App. 120 (2007). The foregoing evidence indicates that the February 2012 opinion was based on an inaccurate factual premise, as there is evidence the Veteran complained of hand pain during his VA examination just approximately two months after separating from service, so very soon after service. Accordingly, the Board finds that remand for a supplemental medical opinion is warranted. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based on an inaccurate factual premise is not probative). On remand, the VA examiner should consider the complaint of pain in the hand joints as documented in the October 1993 VA examination report, as well as the Veteran's May 1993 Report of Medical History at retirement, in which he reported that he had had swollen or painful joints as well as arthritis, rheumatism, or bursitis, and a bone, joint, or other deformity (although the location of his reported condition(s) was not indicated and clinical evaluation, including that of the upper extremities, on retirement examination at that time was normal). Additionally, in her January 2009 Informal Hearing Presentation (IHP), the Veteran's representative stated that the Veteran asserted that his claimed disabilities had their inception in service and had continued to the present. This assertion should also be addressed by the VA examiner. One additional point also worth noting, however, is that a recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) clarified that the notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). Dupuytren's contracture is not one of the conditions identified in § 3.309(a) as chronic, per se, so not the type of condition subject to this continuity of symptomatology exception. Regarding the claim for service connection for tinea pedis, in January 2012, the Board remanded this claim to obtain a medical examination and opinion, as a private physician had stated that the Veteran's tinea pedis was acquired in service, but provided no underlying medical rationale for this opinion. The examiner was asked to provide an opinion concerning the likelihood that this condition originated during the Veteran's military service, such as in relation to his treatment for one episode of dyshidrosis of the feet in August 1981. The Veteran was afforded a VA examination to evaluate his claimed tinea pedis in February 2012. The examiner opined that the etiology of the Veteran's tinea pedis was not at least as likely as not due to service. In providing a rationale for this opinion, he stated that dyshidrosis (which was diagnosed during service) and tinea pedis are different disease entities with different pathophysiological processes unrelated to each other and service treatment records were silent regarding a tinea pedis condition. The VA examiner's opinion appears to have been based on a finding that there were no documented findings of tinea pedis in the Veteran's service treatment records. However, the Veteran has reported that his symptoms of tinea pedis began during service and have continued to the present. See Charles v. Principi, 16 Vet. App. 370 (2002) (the Veteran is competent to report a continuity of symptomatology). The Board further notes that the Veteran was found to have tinea pedis with desquamative skin of both feet on VA examination in October 1993, approximately two months after separation from service; however, such finding was not addressed by the February 2012 VA examiner in rendering his opinion. Accordingly, the Board finds that a supplemental medical opinion regarding this claim is also warranted. In this opinion, the examiner should also consider and address the July 2009 statement from the Veteran's private physician, indicating that his tinea pedis was acquired during military service. Finally, the Board sees that the claims file includes a September 1998 Orthopedic Impairments Medical Report partially in Spanish. While several other Spanish documents have been translated into English, this other document was not and still has not been translated. Thus, this additional translation also needs to be done. Accordingly, these claims are REMANDED for the following additional development and consideration: 1. Associate with the paper claims file or Virtual VA e-folder all pieces of evidence relied on in the January 2010, May 2010, May 2011, and December 2011 rating decisions that are not currently associated with the claims file or Virtual VA e-folder, to include: (1) statements from the Veteran in support of his claim, dated from March 13, 2008 through May 5, 2009; (2) memoranda from the Veteran's representative, dated from March 13, 2008 through May 5, 2009; (3) a lay statement dated May 1, 2009; (4) medical records from several private providers as identified in the January 2010 rating decision; (5) the Veteran's March 2010 claim; (6) an April 2010 VA audiology examination; (7) a November 2010 claim for compensation; (8) an April 2011 VA joints examination; (9) a June 2011 memorandum from the Veteran's representative; (10) a November 2011 VA audiology examination; (11) an October 2011 VA esophagus and hiatal hernia examination; (12) an October 2011 VA general medical examination; (13) a November 2011 VA mental disorder examination; and (14) treatment records from the San Juan VAMC, dated from May 2010 through November 2011; as referenced in the aforementioned rating decisions. 2. Associate any temporary folders in VA's possession with the remainder of the record on appeal. 3. Obtain an English translation of the September 1998 Orthopedic Impairments Medical Report written partially in Spanish. 4. Request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his tinea pedis, hands, right wrist, and/or degenerative joint disease. After acquiring this information and obtaining any necessary authorization, obtain and associate any outstanding pertinent records with the claims file or Virtual VA e-folder. A specific request should be made for any outstanding treatment records from the San Juan VAMC, dated between August 2000 and August 2002 (to particularly include any record of treatment dated on November 30, 2000) and dated between June 2006 and November 2006 (to particularly include any record of treatment dated on November 7, 2006), as well as any additional records identified by the Veteran. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified and the record clearly documented. 5. After all available records have been associated with the claims file, forward the claims file to the physician that performed the most recent February 2012 VA examination of the hands and wrist, if still available, for a supplemental medical opinion. In particular, this physician needs to provide a supplemental medical nexus opinion concerning the likelihood (very likely, as likely as not, or unlikely) that the Veteran's current right wrist and hand disorders, including especially his Dupuytren's contractures and arthritis, are attributable to his military service or date back to his service. In making this necessary determination, this examiner must consider the Veteran's complaint of pain in the hand joints as documented in the October 1993 VA examination report, as well as his May 1993 Report of Medical History at retirement, when he reported having swollen or painful joints as well as arthritis, rheumatism, or bursitis, and a bone, joint, or other deformity (although the location of his reported condition(s) was not indicated and clinical evaluation, including that of the upper extremities, on retirement examination at that time was normal). The examiner must also consider the Veteran's report that his claimed disability had its inception in service and has continued to the present. If, for whatever reason, it is not possible to have this same examiner provide this additional comment, then have someone else do it that is qualified to make these necessary determinations. In this eventuality, this may require having the Veteran reexamined, but this is left to the designee's discretion as to whether another examination is needed or whether, instead, the necessary additional responses can be provided merely from reviewing the claims file. If further examination of the Veteran is deemed necessary, arrange for him to undergo this additional examination. All indicated tests and studies should be accomplished. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 6. After all available records have been associated with the claims file, forward the claims file to the physician that performed the most recent February 2012 VA skin examination, if still available, for a supplemental medical opinion. In particular, this physician needs to provide a supplemental medical nexus opinion concerning the likelihood (very likely, as likely as not, or unlikely) the Veteran's current tinea pedis originated during his military service. In making this necessary determination, this examiner must consider the finding of tinea pedis with desquamative skin of both feet on VA examination in October 1993, approximately two months after separation from service, as well as the Veteran's report that his symptoms of tinea pedis began during service and have continued to the present. If, for whatever reason, it is not possible to have this same examiner provide this additional comment, then have someone else do it that is qualified to make these necessary determinations. In this eventuality, this may require having the Veteran reexamined, but this is left to the designee's discretion as to whether another examination is needed or whether, instead, the necessary additional responses can be provided merely from reviewing the claims file. If further examination of the Veteran is deemed necessary, arrange for him to undergo this additional examination. All indicated tests and studies should be accomplished. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 7. Conduct any other appropriate examination and development deemed necessary. Then readjudicate these claims in light of this and all other additional evidence. If any claim is not granted to the Veteran's satisfaction, send him and his representative another SSOC and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these claims. The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ KEITH W. ALLEN 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) (2012).