Citation Nr: 1313072 Decision Date: 04/19/13 Archive Date: 05/02/13 DOCKET NO. 09-15 820 ) DATE ) MERGED APPEAL ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an increased evaluation for a tinea versicolor, currently evaluated as 10 percent disabling. 2. Entitlement to service connection for a back disorder, to include scoliosis. 3. Entitlement to service connection for sleep apnea. 4. Entitlement to service connection for a right knee disorder. 5. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for pes planus. REPRESENTATION Appellant represented by: Kenneth LaVan, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran served on active duty from February 1979 to February 1983. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. Jurisdiction of the claim is now with the RO in Atlanta, Georgia. The appeal is remanded to the RO. REMAND A Skin Disorder The Veteran claims that an increased evaluation is warranted for his service connected skin disorder. He was last examined by VA for this disorder in July 2010. He has testified before the Board in November 2012 that his disorder had worsened since his last VA examination. Where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Reexamination is necessary whenever VA determines that there is a need to verify either the continued existence or the current severity of a disability. See 38 C.F.R. § 3.327(a) (2012). Therefore, the Board finds that a contemporaneous and thorough VA examination should be conducted to determine the current severity of the Veteran's tinea versicolor. A Back Disorder, to Include Scoliosis VA has determined that there is a distinction between a congenital or developmental "disease" and a congenital "defect" for service connection purposes. Congenital diseases may be recognized as service-connected if the evidence as a whole shows aggravation in service within the meaning of VA regulations. 38 C.F.R. § 3.306 (2012). However, congenital or developmental defects are not service connectable in their own right, although service connection may be granted for additional disability due to disease or injury superimposed upon a defect during service. VAOPGCPREC 82-90, 56 Fed. Reg. 45711 (1990). The Veteran's claim for service connection for a back disorder was denied because the RO found that the upper thoracic scoliosis, which was diagnosed at service separation, was a pre-existing condition. The RO characterized this disorder as a congenital or developmental abnormality. However, the service treatment records do not indicate that the scoliosis was congenital or developmental. The Board finds that remand for a VA examination is warranted. There are current diagnoses of idiopathic dextroscoloisis of the lower thoracic spine and sacroiliitis. In addition to the above medical evidence, the record shows that the Veteran has reported having low back pain in service, which he self-treated. Consequently, the Board finds that a VA examination is needed to confirm what disorders the Veteran currently has involving his spine and to obtain medical opinions relating to all current disorders found on examination. A Right Knee Disorder The Veteran was treated during service for right knee/leg complaints. In April 1979 he complained of right leg pain, and myositis of the right leg was found. Also in April 1979, right knee discomfort and slight effusion of the right knee was noted. The Veteran testified at the hearing before the Board that he had right knee problems since his military service. Private records provided diagnoses of right leg cellulitis and medial and patellofemoral osteoarthritis of the knees, greater on the right. Additionally, VA records show a finding of degenerative changes of the right knee. VA must provide a medical examination in claims for service connection 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 Veteran 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 VA to make a decision on the claim. McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A (d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012). The Veteran's representative has argued that a VA examination should be conducted to determine the etiology of the current right leg/knee disorder and the relationship if any between the current findings and the inservice complaints. Sleep Apnea The Veteran's enlistment examination from September 1978 is negative for sleep apnea, and the Veteran denied having frequent trouble sleeping. There are no symptoms, treatment, or diagnosis of sleep apnea during service. The Veteran's separation examination from December 1982 did not indicate that the Veteran had sleep apnea, and he denied having frequent trouble sleeping. In June 2006, the Veteran was seen at a VA facility and indicated that he slept "ok" and that he had been told that he had sleep apnea. In December 2006, a CPAP sleep machine was issued for treatment of obstructive sleep apnea and later in December 2006, obstructive sleep apnea was noted as a problem. The Veteran contends that he began snoring in service and continued having trouble with snoring and sleep problems since service discharge. In a May 2009 a statement from the Veteran's sister, indicated that when the Veteran came home after leaving the Air Force she noticed that when he slept he would sometimes stop breathing and his snoring was unusually loud. She stated that he currently snored loudly and sometimes wakes himself up. The Veteran and his sister are competent to report symptoms observable by them as lay persons. The lay evidence indicates that the Veteran had sleep problems in service and after he returned home from service. He has a current diagnosis of sleep apnea. In light of the evidence of current obstructive sleep apnea, and the Veteran's credible statements of continuous sleep impairment for many years, as well as the credible statement from his sister, the Board finds that a VA medical opinion is needed as to the etiology of this disorder. See McLendon, 20 Vet. App. at 81; 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). The examiner should be asked to opine as to whether any current sleep apnea is related to service or a service-connected disability. Pes Planus In August 2007, the RO denied service connection for pes planus. The RO considered the Veteran's service treatment records and VA treatment records dated in 2006 and 2007. The RO found that the service records were entirely negative for any complaints of or diagnosis of flat feet. VA records showed diagnoses of pes planus. The RO determined that the disorder was neither occurred in nor caused by service. The Veteran was informed of the decision and he did not appeal. Accordingly, that decision is final. 38 U.S.C.A. § 7105 (West 2002). In cases, as here, involving petitions to reopen previously denied unappealed claims, VA must both notify a claimant of the evidence and information necessary to reopen the claim and of the evidence and information necessary to establish entitlement to the underlying benefit being sought, i.e., service connection. Kent v. Nicholson, 20 Vet. App. 1 (2006). To satisfy this requirement, VA is required to look at the bases for the denial in the prior decision and provide the claimant a notice letter describing what evidence would be necessary to substantiate those elements required to establish entitlement to service connection that were found insufficient in the previous denial. Here, a notice letter was provided to the Veteran in June 2010, which stated that his claim was denied previously because the disorder was neither incurred in nor caused by service. He was also informed that VA needed evidence that the condition existed from military service to the present time. During the course of the appeal the RO noted that pes planus was documented at service entrance and that the new evidence did not show that the disorder was aggravated during service. In order to ensure that the Veteran is fully informed as to the evidence necessary to reopen his claim, a remand is required to satisfy due process. Accordingly, the case is remanded for the following action: 1. The RO must provide the Veteran a corrective notice letter. This notice letter must describe the elements necessary to establish entitlement to service connection for a disability, but also must define new and material evidence and must describe what evidence would be necessary to substantiate the element or elements required to establish service connection. This would include evidence necessary to establish service connection based on aggravation of a pre-existing disorder. 2. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his attorney must then be given an opportunity to respond. 3. The Veteran must be afforded the appropriate VA examination to determine the severity of his tinea versicolor. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must opine as to the percentage of the total area of the body affected, and the exposed areas affected by the disability based on the physical examination. If the examination takes place during an inactive stage of disability, percentages based on a review of the record and the Veteran's description of his symptoms during an exacerbation must be provided. The examiner must also indicate whether the Veteran's tinea versicolor requires treatment with corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more, and if longer, whether constant or near constant use is necessary. Color photographs of any manifestations of the Veteran's tinea versicolor must be taken and associated with the file. 4. The Veteran must be afforded the appropriate VA examination to determine whether his previously diagnosed sleep apnea is related to his military service. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, and the statement provided by his sister, the examiner must state whether sleep apnea is related to the Veteran's active duty service. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 5. The Veteran must be afforded the appropriate VA examination to determine whether any diagnosed right leg/knee disability is related to his military service. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must state whether any diagnosed right leg/knee disorder is related to the Veteran's active duty service. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 6. The Veteran must be afforded the appropriate VA examination to determine whether any diagnosed back disorder is related to his military service. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must state whether any back disorder found is related to the Veteran's active duty service. The examiner must render a diagnosis of all current disorders of the spine, to include upper thoracic scoliosis, which was noted upon separation from military service and sacroiliitis. The examiner must address whether the scoliosis diagnosed in service constitute a congenital defect or a disease. A congenital abnormality that is subject to improvement or deterioration is considered a disease. If the examiner finds that the Veteran's scoliosis is a congenital defect, the examiner must determine if was there additional disability due to disease or injury superimposed upon such defect during service. If the examiner finds that the Veteran's scoliosis is a congenital disease, the examiner must indicate whether the disease was aggravated by his military service beyond the natural progression. Aggravation indicates a permanent worsening of the underlying condition as compared to an increase in symptoms. If scoliosis is not considered to be congenital in nature, the examiner must state whether the scoliosis shown on service separation was traumatic in nature. As to any other back disorder currently shown, to include the previous diagnosis of sacroiliitis, the examiner must provide an opinion as to whether each back disorder found is related to the Veteran's military service. A complete rationale for all opinions must be provided. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 7. The RO must notify the Veteran that it is his responsibility to report for the examinations and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for an examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 8. After the development requested has been completed, the RO must review the examination reports to ensure that they are in complete compliance with the directives of this Remand. If a report is deficient in any manner, the RO must implement corrective procedures at once. 9. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the RO must consider all evidence submitted since the issuance of the April 2009 and the August 2011 statements of the case and the Veteran's claims must be readjudicated. If any benefit sought on appeal remains denied, the Veteran and his attorney must be furnished a supplemental statement of the case and be given the opportunity to respond thereto. The appeal must then be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).