Citation Nr: 1309830	
Decision Date: 03/22/13    Archive Date: 04/01/13

DOCKET NO.  08-00 261A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for hypertension to include as secondary to anxiety disorder, not otherwise specified, with cognitive deficits. 

2.  Entitlement to a rating higher than 60 percent for a low back disability, bulging discs from L2 to L5 and degenerative joint disease of the lumbar spine (hereinafter, "low back disability"). 

3.  Entitlement to a rating higher than 10 percent for residuals of a coccygectomy (hereinafter, "coccyx disability").


REPRESENTATION

Appellant represented by:	The American Legion




ATTORNEY FOR THE BOARD

John Kitlas, Counsel


INTRODUCTION

The Veteran had two days of active military service from November 26-28, 1976, and additional periods of active duty for training (ACUDTRA) and inactive duty training (INACDUTRA) in the National Guard. 

This appeal to the Board of Veterans' Appeals (Board) is from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, in pertinent part, denied entitlement to increased ratings for low back disability and coccyx disability, and denied service connection for hypertension.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

This case was previously before the Board in August 2010 and July 2012, at which time the current appellate claims were remanded for further development to include a new VA medical examination to evaluate the severity of the service-connected disabilities of the low back and coccyx.  Such examinations were accomplished in November 2010 and August 2012.  Although the Board determined in July 2012 that the November 2010 VA examination was inadequate as the examiner did not note that the claims folder was reviewed as directed by the prior remand directives, the August 2012 examination did note that the claims folder was reviewed.  As detailed below the Board finds that this examination is otherwise adequate for resolution of these claims.  All other development directed by the Board's remands regarding the low back and coccyx claims appears to have been substantially completed.  Accordingly, a new remand is not required under Stegall v. West, 11 Vet. App. 268 (1998).  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (Remand not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).

For the reasons addressed in the REMAND portion of the decision below, however, further development is still required regarding the hypertension claim.  Accordingly, this claim is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  All notification and development necessary for the disposition of the issues adjudicated by this decision have been completed.

2.  The record does not reflect the Veteran's service-connected low back disability is manifested by unfavorable ankylosis of the entire spine; or associated neurologic impairment; or incapacitating episodes as defined by VA regulations.

3.  The Veteran is already in receipt of the maximum schedular rating available for a disability of the coccyx.

4.  The symptomatology manifested by the Veteran's service-connected disabilities of the low back and coccyx are adequately reflected by the schedular criteria; neither disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards.


CONCLUSIONS OF LAW

1.  The criteria for a rating in excess of 60 percent for the Veteran's service-connected low back disability are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5235-5243 (2012).

2.  The criteria for a rating in excess of 10 percent for the Veteran's service-connected coccyx disability are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5298 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Preliminary Matters

The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  

The United States Court of Appeals for Veterans Claims (Court) has held that adequate notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004).  In this case, the Veteran was sent pre-adjudication notice via letters dated in May and November 2006, both of which were clearly sent prior to the May 2007 rating decision that is the subject of this appeal.  He was also sent additional notification via letters dated in November 2007, February 2008, September 2008, September 2010, and July 2012.  All of this correspondence was received prior to the last adjudication below of the low back and coccyx claims by Supplemental Statement of the Case (SSOC) promulgated to the Veteran in January 2013 which "cures" the timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication.  Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34.  

Taken together, the aforementioned VCAA letters informed the Veteran of what was necessary to substantiate his current appellate claims, what information and evidence he must submit, what information and evidence will be obtained by VA, and the need for the Veteran to advise VA of or to submit any evidence in his possession that was relevant to the case.  As such, this correspondence fully complied with the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. 
§ 3.159(b), as well as the Court's holding in Quartuccio, supra.  Moreover, the Veteran was provided with information regarding disability rating(s) and effective date(s) as mandated by the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Further, the September 2008 letter included the specific schedular criteria used to evaluate the Veteran's disabilities of the low back and coccyx.

(The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008.   See 73 Fed. Reg. 23353-56 (Apr. 30, 2008).   The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008.   The amendments, among other things, removed the notice provision requiring VA to request the veteran to provide any evidence in the veteran's possession that pertains to the claim.   See 38 C.F.R. § 3.159(b)(1).)

All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims.  Once this has been accomplished, all due process concerns have been satisfied.  See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error).  In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence.  Accordingly, there is no further duty to notify.  In any event, the Veteran has not demonstrated any prejudice with regard to the content or timing of any notice.  See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination).

In addition, the Board finds that the duty to assist a claimant in the development of his case has been satisfied regarding his low back and coccyx claims.  The Veteran's service treatment records are on file, as are various post-service medical records.  Further, the Veteran has had the opportunity to present evidence and argument in support of his claims.  Although he indicated that he was in receipt of disability benefits from the Social Security Administration (SSA), an August 2007 memorandum reflects that the SSA reported that the Veteran's medical records had been destroyed.  Nothing indicates he has identified the existence of any other relevant evidence that has not been obtained or requested.  For example, he has not identified outstanding evidence which demonstrates symptoms of his service-connected low back and coccyx disabilities that are not demonstrated by the evidence already of record.

The Board further notes that the Veteran was accorded VA medical examinations in May 2007, November 2010, and August 2012 which included findings as to the current severity of the low back and coccyx disabilities.  As noted in the Introduction, the November 2010 VA examination did note that the claims folder was reviewed as directed by the Board's August 2010 remand, but this deficiency was corrected by the August 2012 VA examination.  No inaccuracies or prejudice is otherwise demonstrated with respect to these examinations, nor has the Veteran indicated that either disability has increased in severity since the most recent examination.  Accordingly, the Board finds that these examinations are adequate for resolution of this case.  

In view of the foregoing, the Board finds that the duty to assist the Veteran has been satisfied in this case.

The Board notes that it has thoroughly reviewed the record in conjunction with this case.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence).  Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims.  See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant).  

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. 

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).  Indeed, 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) (West 2002).  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).  

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant.  38 U.S.C.A. § 5107(b).  When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant.  Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  38 C.F.R. § 3.102.  The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).  

General Legal Criteria

Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  Other applicable, general policy considerations are:  interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations applies, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

In evaluating disabilities of the musculoskeletal system, additional rating factors include functional loss due to pain supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion.  38 C.F.R. § 4.40.  Inquiry must also be made as to weakened movement, excess fatigability, incoordination, and reduction of normal excursion of movements, including pain on movement.  38 C.F.R. § 4.45.  The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59.  See also DeLuca v. Brown, 8 Vet. App. 202 (1995).

The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability.  Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994).  However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that the rule from Francisco does not apply where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability.  Rather, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings.  More recently, the Court held that "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

With regard to the Veteran's request for an increased schedular evaluation, the Board will only consider the factors as enumerated in the applicable rating criteria.  See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992).

Analysis - Low Back

Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees.  The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation.  The normal combined range of motion of the thoracolumbar spine is 240 degrees.  Further, the normal ranges of motion for each component of spinal motion are the maximum that can be used for calculation of the combined range of motion.  See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2), as added by 68 Fed. Reg. 51,454 (Aug. 27, 2003).

The General Rating Formula for Diseases and Injuries of the Spine provides that with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.  An evaluation of 20 percent is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  An evaluation of 40 percent is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine.  An evaluation of 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine.  An evaluation of 100 percent requires unfavorable ankylosis of the entire spine.  

For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.  See 38 C.F.R. 
§ 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5), as added by 68 Fed. Reg. 51,454 (Aug. 27, 2003).

The evaluation criteria are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine.  Therefore, an evaluation based on pain alone would not be appropriate, unless there is specific nerve root pain, for example, that could be evaluated under the neurologic sections of the rating schedule.  See 68 Fed. Reg. 51,455 (Aug. 27, 2003).

As detailed above, the General Rating Formula for Diseases and Injuries of the Spine only provides for a rating in excess of 60 percent when there is unfavorable ankylosis of the entire spine.  The Board acknowledges that both the May 2007 and August 2012 VA examinations were unable to conduct range of motion testing of the Veteran's spine.  However, none of the examinations or other evidence of record has actually diagnosed him with ankylosis.  In fact, the November 2010 VA examination specifically found that the Veteran did not have ankylosis.  Further, on this examination he had forward flexion to 55 degrees, extension to 5 degrees, right and left lateral flexion to 20 degrees, left lateral rotation to 10 degrees, and right lateral rotation to 15 degrees.  Although there was objective evidence of pain on range of motion, there was no additional limitations after three repetitions of range of motion.  The Board also notes that while the record includes evidence of an abnormal gait, the record does not reflect that this is because of a limited line of vision.  Moreover, the record does not reflect the service-connected low back disability has resulted in restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.  Thus, the record does not support a finding of unfavorable ankylosis of the entire spine.

The Board also finds that the record does not indicate the Veteran's service-connected low back disability has resulted in associated neurologic symptoms that would warrant a separate rating pursuant to Note (1) of the General Rating Formula for Diseases and Injuries of the Spine.  In fact, the August 2012 VA examiner specifically found that the Veteran had no such impairment.  For example, the examiner specifically found that he did not have radiculopathy.  Although there were neuromotor deficits in the left leg, the examiner found that they were due to conditions other than the service-connected low back disability to include residuals of cerebrovacsular accident, fractures, and diabetic neuropathy.

The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that an evaluation of 10 percent is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months.  An evaluation of 20 percent is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months.  An evaluation of 40 percent is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months.  Finally, an evaluation of 60 percent requires intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.

For the purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.  See 38 C.F.R. § 4.71a, Intervertebral Disc Syndrome, Note (1); see also 69 Fed. Reg. 32, 449 (June 10, 2004).

In this case, the Board acknowledges that the Veteran has been diagnosed with intervertebral disc syndrome.  However, the August 2012 VA examination specifically found that he had not experienced any incapacitating episodes during the past 12 months.  A thorough review of the record does not otherwise demonstrate that he has incapacitating episodes as defined by VA regulations.  Moreover, the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides for a maximum rating of 60 percent, which is the current disability rating for the Veteran's service-connected low back disability.  In short, this Formula does not provide a basis for the benefit sought on appeal in this case.

For these reasons, the Board finds that the Veteran does not meet or nearly approximate the schedular criteria for a rating in excess of 60 percent for his service-connected low back disability.

Analysis - Coccyx

Diagnostic Code 5298 provides for a zero percent rating to be assigned for partial or complete removal of the coccyx, without painful residuals.  A maximum 10 percent rating is available for removal of the coccyx with painful residuals.  38 C.F.R. 
§ 4.71a. 

In short, the Veteran is already in receipt of the maximum schedular rating for a disability of the coccyx.  The Board also notes that no other Diagnostic Code is available for evaluating disabilities of the coccyx.  Therefore, there is no legal basis to assign a higher schedular rating for this disability.

Other Considerations

In evaluating the Veteran's service-connected low back and coccyx disabilities, the Board notes that it considered the applicability of "staged" rating(s) pursuant to Fenderson, supra, and Hart, supra.  However, a thorough review of the record does not show any distinctive period(s) where the Veteran's low back disability was manifested by unfavorable ankylosis of the entire spine.  Further, the Veteran has been in receipt of the maximum schedular rating for his coccyx throughout the pendency of this case.  Consequently, there is no basis to assign a "staged" rating(s) for either of these disabilities.

In exceptional cases an extraschedular rating may be provided.  38 C.F.R. § 3.321.  The Court has set out a three-part test, based on the language of 38 C.F.R. 
§ 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  

In this case, the Board observes that the Veteran's service-connected low back disability has been primarily manifested by complaints of pain and limitation of motion, while the service-connected coccyx disability has been manifested by painful residuals.  Such symptomatology if fully contemplated by the schedular criteria.  The record does not otherwise indicate either disability presents such an exceptional or unusual disability picture so as to render impractical the application of the regular schedular standards.  The rating criteria are therefore adequate to evaluate these service-connected disabilities and referral for consideration of extraschedular rating is not warranted.

Lastly, the Board notes that notes that, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim of entitlement to a total rating based upon individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record.  In this case, however, the Veteran is already in receipt of a TDIU.  Therefore, no further discussion of this issue is warranted based upon the facts of this case.


ORDER

Entitlement to a rating higher than 60 percent for service-connected low back disability is denied.

Entitlement to a rating higher than 10 percent for service-connected coccyx disability is denied.


REMAND

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).  

In this case, the Veteran has essentially contended that his hypertension is secondary to his service-connected anxiety disorder.  A disability which is proximately due to or the result of a service-connected disease or injury shall be service-connected.  38 C.F.R. § 3.310.  The Court has held that when aggravation of a service member's nonservice-connected disability is proximately due to or the result of a service-connected disease or injury, it too shall be service-connected.  Allen v. Brown, 7 Vet. App. 439, 446 (1995).

The Board notes that both the November 2010 and August 2012 VA examinations included opinions which addressed the Veteran's claim of secondary service connection.  However, neither of these examinations specifically addressed the issue of secondary aggravation even though it was specifically directed by the Board's remand.  

The Court has held that, where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance, and further remand will be mandated.  Stegall, supra.  In addition, the Board notes that once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  Therefore, a remand is required to obtain clarification from the August 2012 VA examiner as to whether the Veteran's hypertension has been aggravated by his service-connected anxiety disorder.  If the original examiner is unavailable, then the requested opinion should be obtained by another appropriately qualified clinician.

The Board further finds that any outstanding treatment records regarding the Veteran's hypertension should be obtained while this case is on remand.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

1.  Please obtain the names and addresses of all medical care providers who have treated the Veteran for his hypertension since August 2012.  After securing any necessary release, obtain those records not on file.

2.  The Veteran's claims folder should be made available to the clinician who conducted the August 2012 VA examination for review and clarification of the opinion expressed therein.  Specifically, the examiner must express an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that the Veteran's hypertension has been aggravated by his service-connected anxiety disorder.  By aggravation, the Board means an increase in the severity of the disability that is beyond natural progression.

A complete rationale for any opinion expressed must be provided, to include if the examiner determines that an opinion cannot be provided without resort to speculation.  See Jones v. Shinseki, 23 Vet. App. 382 (2010) (An examiner's report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement.).

If the original examiner is unavailable, then the requested opinion should be obtained by another appropriately qualified clinician.

3.  Thereafter, review the claims folder to ensure that the foregoing requested development has been completed.  In particular, review the examination report to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures.  See Stegall v. West, 11 Vet. App. 268 (1998).

4.  After completing any additional development deemed necessary, readjudicate the issue on appeal in light of any additional evidence added to the records assembled for appellate review.  

If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished an SSOC which addresses all of the evidence obtained after the issuance of the last SSOC in December 2012, and provides an opportunity to respond.  The case should then be returned to the Board for further appellate consideration, if in order.  By this remand, the Board intimates no opinion as to any final outcome warranted.

The appellant 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 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).


______________________________________________
M. G. MAZZUCCHELLI
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs