Citation Nr: 1316707 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 09-37 914 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to an initial compensable rating for service-connected degenerative joint disease of the left thumb. 2. Entitlement to an initial compensable rating for service-connected hypertension. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D. Rogers, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1983 to July 2007. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah, which granted service-connection for degenerative joint disease of the left thumb and hypertension, and assigned initial noncompensable evaluations effective August 1, 2007, the day following the Veteran's discharge from active service. Thereafter, the claims file was transferred to the RO in Boise, Idaho, which reconsidered and confirmed and continued the initial noncompensable evaluations assigned for the disabilities on appeal in December 2007, April 2008, and September 2009 rating decisions. The Veteran was scheduled to present testimony before a Veterans Law Judge in July 2011, however, the Veteran cancelled the scheduled hearing. It was noted that he would submit a statement indicating as to whether he would like the hearing to be rescheduled. To date, no such statement has been received. As neither the Veteran nor his representative have requested that the hearing be rescheduled, the Board deems the Veteran's request for such a hearing to be withdrawn. See 38 C.F.R. § 20.704 (2012). The issue of entitlement to an initial compensable rating for hypertension is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT For the entire initial rating period on appeal, the Veteran's left thumb disability has been manifested by degenerative osteoarthritis, no gap between thumb and the fingers, tenderness to palpation, and flare-ups of left thumb joint symptoms from once a week to once every three weeks with subjective complaints of spasm at the base of the thumb, increased pain, decreased endurance, and episodes if an inability to use the thumb for about 10 minutes. CONCLUSION OF LAW The criteria for a 10 percent rating, but no more, for left thumb degenerative joint disease, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.71a, DC 5003-5228 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VA's notice requirements apply to all five elements of a service-connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In cases that concern the assignment of a disability rating, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Id. Notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was provided with compliant preadjudication VCAA notice in a June 2007 letter, which provided notice of the information and evidence needed to substantiate his claim for service connection. An additional April 2009 letter also provided the Veteran with notice of the information and evidence needed to substantiate his claim for an increased initial rating for a left thumb disability and advised him to submit evidence showing that the claimed disability had worsened. The June 2007 and April 2009 letters included notice of the process in which VA assigns disability evaluations and effective dates. The United States Court of Appeals for Veterans Claims (Court) has held that once service connection is granted, the claim is substantiated. In such instances, additional VCAA notice is not required and any defect in the notice is not deemed prejudicial to the Veteran. Dunlap v. Nicholson, 21 Vet. App. 112, 119 (2007); Dingess, 19 Vet. App. at 491. Thus, because the VCAA notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. In addition, VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the Veteran's claim for an initial compensable rating for degenerative joint disease of the left thumb. The Veteran's service treatment records, VA treatment records, and VA examination reports pertaining to the claimed disability have been associated with the record. The Veteran was afforded VA examinations July 2007 and May 2009. These examinations, in combination, and along with the other evidence of record, are fully adequate for the purpose of determining the nature, etiology, and severity of the disability adjudicated herein. The examiners reviewed the claims file, medical records, and the Veteran's reported history and lay contentions concerning his left thumb disability. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Law and Analysis The Veteran contends that degenerative joint disease of his left thumb is more severely disabling than is reflected by the initial noncompensable (0 percent) disability rating currently assigned. He contends that at least a 10 percent disability rating is warranted for his left thumb disability due to painful motion of his left thumb and x-ray findings of degenerative joint disease of his left thumb. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). Separate rating codes identify the various disabilities. See 38 C.F.R. Part 4 (2012). When there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. See 38 C.F.R. § 4.3 (2012). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). In general, after the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the Board resolves the benefit of the doubt for each such issue in favor of the veteran. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2012). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that a veteran "need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). In this case, service connection was awarded for degenerative joint disease of the left thumb in a September 2007 rating decision and an initial noncompensable evaluation was assigned under 38 C.F.R. § 4.71a, Diagnostic Codes (DC) 5003-5228, effective August 1, 2007, the day after the Veteran's discharge from active service. See 38 C.F.R. § 4.27. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2012); see also 38 C.F.R. §§ 4.45, 4.59 (2012). Pursuant to the rating criteria for limitation of motion of individual digits of the hand, the Veteran's left thumb disability is rated as noncompensable (0 percent) throughout the duration of the claim under DC 5003-5228. Again, he is right-hand dominant; hence the left hand represents the nondominant upper extremity. A noncompensable evaluation is assigned for limitation of motion of the thumb with a gap of less than 1 in. (2.5cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. A 10 percent disability is warranted for limitation of motion of the thumb with a gap of one or two inches (2.5cm. to 5.1cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. A 20 percent rating, the highest available is assigned for limitation of motion of the thumb with a gap of more than 2 in. (5.1cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. Also relevant in this case is Diagnostic Code 5003, which provides the rating criteria for degenerative arthritis. This diagnostic code provides that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. When, however, the limitation of motion of the specific joint or joints involved is not compensable under the diagnostic codes, an evaluation of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. Diagnostic Code 5003. For the purpose of rating disability from arthritis, multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities are considered groups of minor joints, ratable on a parity with major joints. 38 C.F.R. § 4.45(f). After a full review of the record and consideration of whether the assignment of separate ratings for separate periods of time is warranted, the Board finds that a rating of 10 percent, but no higher, is warranted for a left thumb disability throughout the duration of the appeal. As discussed below, the evidence of record indicates that the service-connected disability is manifested by degenerative osteoarthritis, no gap between thumb and the fingers, tenderness to palpation, and flare-ups of left thumb joint symptoms from once a week to once every three weeks for hours in duration with subjective complaints of spasm at the base of the thumb, increased pain and decreased endurance which results in nonuse of the left thumb for about 10 minutes. In this case, a February 2007 service retention examination showed a new concern of left thumb pain. X-ray examination showed mild to modest degenerative changes throughout the wrist and hand, to include at the metacarpophalangeal joints and the proximal and distal interphalangeal joints (PIP/DIP). There was also evidence of degenerative spurring and sclerosis of the first metacarpal joint and radiocarpal joints. Complaints noted during the July 2007 VA examination included pain and mild weekly flare-ups of joint symptoms of the thumb lasting for hours in duration. Flare-ups of joint symptoms were precipitated by activity and alleviated with rest. The Veteran's perceived additional functional impairment during flare-ups included increased pain and decreased endurance. There was no history of hospitalization, surgery, or trauma due to left thumb complaints. Clinical evaluation of the left thumb revealed full active and passive range of motion. There was no objective evidence of pain on motion, additional pain on repetitive motion, or additional limitation of motion after repetitive use of the joint. There was no decreased strength to pushing, pulling and twisting or in dexterity for twisting, probing, writing, touching, and expression. Other significant findings included tenderness over the metacarpal and navicular joints. X-ray of the left hand revealed mild osteoarthritis with minimal marginal sclerosis of the trapezium, 1st metacarpal joint space and 1st interphalangeal joint spaces. There was minimal periarticular ossification contiguous with the 3rd distal interphanalgeal joint space. The examiner diagnosed left thumb degenerative arthritis. She concluded that such diagnosis has significant effects on the Veteran's usual occupation as an Air Force aircraft armament systems craftsman due to pain. The Veteran had been assigned different occupational duties, however, he denied any time lost from work in the 12 months prior to examination. Left thumb degenerative arthritis also resulted in moderate effects on his usual daily activities of chores, shopping, exercise, sports, and recreation. During a May 2009 orthopedic consultation, it was noted that the Veteran was employed as a contractor to the Air Force doing some manual work concerning the loading of bombs. He was mainly an instructor. Gripping, grasping, squeezing, and twisting motions all caused pain. Treatment included regular use of nonsteroidal anti-inflammatory medication as tolerated. The Veteran was afforded an additional VA examination of his left thumb disability in May 2009. Complaints included constant pain in the 1st metatarsal and when trying to grip objects. Moderate flare-ups of joint symptoms were also reported once every three weeks in the carpal - metacarpal of the left thumb lasting for hours in duration. During flare-ups, he reported experiencing spasm at the base of the thumb which prevented use of the thumb for about 10 minutes. Precipitating factors were unknown and they were self limiting. Treatment included 500 mg of Naproxen medication without side effects and there was no history of surgery or hospitalization. Clinical evaluation revealed no gap between the left thumb pad and fingers. There was no objective evidence of pain on motion or following repetitive motion. There was no additional or new functional limitation of motion. There was an overall decrease in hand strength (4/5) for pushing, pulling, and twisting and with abduction, adduction, flexion, and extension. Right thumb grip was 21 pounds and left thumb grip was 5 pounds. Hand grip with the thumb sticking out and therefore out of the equation was 75 pounds on the right and 30 pounds on the left. The examiner stated that this was a significant difference, even accounting for right handedness, as the thumbs played no part in the hand grip. The examiner stated that such findings demonstrate that the Veteran is either extremely right hand dominant or a lack of effort with his left hand. Thumb flexion was to 60 degrees on the left and 70 degrees on the right at the interphalangeal joint and to 60 degrees on the left and 65 degrees on the right at the MCP joint. The examiner could not explain the decreased range of motion at the interphalangeal joint. There were also objective findings of swelling and significant objective point tenderness at the dorsal-ulnar base of the left first metacarpal. X-ray examination revealed minor degenerative changes at best at the base of the thumb and distal pole scaphoid. There was also possible mild posttraumatic angulation at the middle phalanges 5th ray. The examiner diagnosed degenerative joint disease of the left thumb without significant effects on the Veteran's usual occupation. There were severe effects on his usual daily activities of chores, exercise, sports, and feeding. Moderate effects were noted as to shopping, recreation, bathing, dressing, toileting, and grooming. Mild effects were noted as to travel. In his October 2009 VA Form 9, the Veteran indicated that his left thumb degenerative joint disease clearly warrants a minimal compensable rating. He indicated that he did and still has painful motion of his thumb which creates a lot of problems in his employment. He indicated that use of his left thumb resulted in increased pain that correlated with increased motion. He believed that under 38 C.F.R § 4.59, he is entitled to a minimal compensable evaluation for degenerative joint disease of his left thumb as there are x-ray findings of degenerative arthritis, combined with painful motion of the left thumb. He was unsure how a VA examiner could conclude that pain was not due to his thumb. He took serious offense to his impression that a VA examiner and an adjudicator had made him out to be a liar. In response, he stated that there is nothing in his service personnel or medical records that that would lead anyone to believe that he is a non-credible witness as to his own first hand experiences of events and injuries. Based on the evidence above, including essentially normal range of motion and the ability to make a full fist but pain on movement, the Board finds that a 10 percent rating, but no more, is warranted for the entire time on appeal. A higher rating is not warranted because the limitation of motion, either actual or functionally, does not reflect a gap of more than 2 in. (5.1cm.) between the thumb pad and the fingers. Throughout the duration of the claim, x-ray findings of the left thumb have been demonstrative of degenerative osteoarthritis. Limitation of motion of the left thumb was reported by the Veteran and demonstrated upon VA examination in May 2009. The Veteran has also reported flare-ups with increased pain and lack of endurance of the left thumb. Where there is limitation of motion, but the limitation of motion is noncompensable under the limitation of motion diagnostic codes, X-ray confirmation of the affected joint will warrant a 10 percent disability rating under Diagnostic Code 5003. Based on the Veteran's credible statements and after resolving any doubt in the Veteran's favor, it appears that this degree of impairment was present since the date of his claim. Accordingly, the Board finds that the assignment of a 10 percent disability evaluation is warranted under Diagnostic Code 5003 for degenerative osteoarthritis of the left thumb since August 1, 2007. The next-higher 20 percent evaluation for degenerative arthritis is not warranted at any time under DC 5003 as there is no x-ray evidence of involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5003. Also, the next-higher 20 percent evaluation is not warranted under DC 5228 for a gap of more than two inches (5.1 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers, given that the Veteran's left thumb demonstrated no gap between the thumb pad and fingers throughout the duration of the claim. 38 C.F.R. § 4.71a, DC 5228. The Board has considered the applicability of other DCs throughout the duration of this appeal. However, the Board finds that DCs 5216-5227 pertaining to favorable and unfavorable ankylosis of multiple and individual digits are not applicable as the medical evidence does not show objective evidence of any favorable or unfavorable ankylosis of any digit upon physical or x-ray examination. 38 C.F.R. § 4.71a, DCs 5216-5227. The current initial 10 percent disability rating currently in effect is assigned due to functional loss of the left thumb due to decreased strength, painful motion, and lack of endurance during flare-ups. However, repeated physical examination has consistently showed no gap between the thumb pad and fingers with no additional limitation of motion as a result of pain or on repetitive motion. See DeLuca, supra; see also Mitchell v. Shinseki, No. 2009-2169, 2011 WL 3672294 (Vet. App. Aug. 23, 2011). In essence, although the Veteran complains of painful motion which is increased with lack of endurance during episodic flare-ups of joint pain with increased activity, the Board finds that the degree of functional loss he experiences as a result is already contemplated in the 10 percent currently assigned, and there has been no indication that the pain has resulted in disability so as to warrant a higher evaluation under DC 5228. For the reasons explained, the Board finds that the Veteran's left thumb degenerative joint disease warrants an initial 10 percent compensable disability rating but not higher throughout the duration of the claim under DCs 5003-5228. In rendering this decision, the Board has considered the lay evidence that the Veteran has offered in support of his claim. The Veteran is competent to note that he has experienced symptoms associated with degenerative joint disease of his left thumb. See Layno v. Brown, 6 Vet. App. 465, 467-69 (1994) (stating that the veteran as a lay person is competent to report information of which he or she has personal knowledge, i.e., information that he can gather through his senses). While the Board accepts the Veteran's contentions as to his symptoms, as noted above, numerous examinations have been performed wherein the criteria for an evaluation in excess of the initial 10 percent assigned herein for degenerative joint disease of the left thumb have not been shown. Accordingly, the weight of the evidence is against a finding that an initial disability in excess of the 10 percent assigned here in warranted. In short, the Board concludes that the preponderance of the evidence is against granting an initial evaluation in excess of 10 percent for the Veteran's service-connected left thumb degenerative joint disease. The Board further finds that there have been no distinct periods of time during which the disability is compensable to a degree greater than 10 percent. He is accordingly not entitled to receive "staged" ratings. Fenderson, supra. Extra-Schedular Considerations In addition, the Board has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis for degenerative joint disease of his left thumb. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). In Thun v. Peake, the Court set forth a three-step inquiry to determine a veteran's entitlement to an extra-schedular rating. 22 Vet. App. 111 (2008). First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found to be inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. In this case, it is not necessary to go any further than the first step of the Thun analysis. The rating criteria are not inadequate. Higher ratings are available for more serious manifestations of the Veteran's disability considered herein, but the Veteran does not meet those criteria. It does not appear that the Veteran has an "exceptional or unusual" disability; he merely disagreed with the initially assigned noncompensable evaluation for his level of impairment. In other words, he does not have any symptoms from his service-connected disorder that are unusual or are different from those contemplate by the schedular criteria. The available schedular evaluation for his service-connected left thumb degenerative joint disease disability is adequate. The Veteran's disability picture is contemplated by the rating schedule and no extra-schedular referral is required. See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). Finally, the Board also notes that the Court has held that the issue of a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when a request for TDIU is reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). In the instant case, however, the Veteran has not explicitly raised the issue of TDIU. Likewise, the record does not reasonably raise the issue of TDIU. Indeed, the Veteran has indicated that he is employed full time as an aircraft mechanic or at the Idaho Tax Commission. Moreover, during the most recent May 2009 examination, the Veteran indicated that he had not missed any more than 1 week of work in the 12 months prior due to doctors appointments. In light of the foregoing, the Board finds that entitlement to TDIU has not been raised. In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against a finding that the Veteran warrants a rating higher than the initial 10 percent evaluation assigned by this decision, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to an initial compensable (10 percent disability) evaluation, but not higher, for degenerative joint disease of the left thumb is allowed, subject to the regulations governing the award of monetary benefits. REMAND The Board sincerely regrets the additional delay in adjudicating the Veteran's remaining claim for an increased compensable rating for service-connected hypertension. However, this remand is necessary to ensure that the Veteran receives all consideration due to him under the law. The Board observes that the Veteran's service-connected hypertension was most recently evaluated in May 2009, approximately 4 years ago. Additionally, the most recent treatment records associated with the claims file for review are dated in November 2009. In his October 2009 VA Form 9, the Veteran asserted that he has had diastolic blood pressure readings of 100, higher than 100, and lower than 100. VA and home blood pressure readings submitted by the Veteran show that one occasion with a systolic blood pressure reading of 160 mm. (see April 14, 2009, home blood pressure reading), and three occasions where his diastolic blood pressure readings were over 100 (see February 2007 service retirement examination (106 mm.), and April 6, 2009, home blood pressure readings (108 and 107 mm.)). He also asserted that the May 2009 examination is inadequate because 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1) provides that hypertension must be confirmed by readings taken two or more times on at least three different days. He stated that this was not done and he requested that he be provided with a proper VA examination to determine the current severity of his service-connected hypertension. In this regard, the Board notes that given that the Veteran's hypertension diagnosis is already established, it is not necessary that his blood pressure readings be taken two or more times on at least three different days. In any event, the May 2013 informal hearing presentation, the Veteran's representative stated that despite the Veteran's continuous need and use of blood pressure medication for control of his service-connected hypertension, he still experiences unusually high blood pressure readings with diastolic pressure readings over 100 mm. As the Veteran appears to essentially contend that his service-connected hypertension disability may have worsened since the most recent May 2009 VA examination, a new VA examination is necessary to determine the current nature and severity of that disability. Although a new VA examination is not warranted based merely upon the passage of time (see Palczewski v. Nicholson, 21 Vet. App. 174 (2007)), the Court has held that where a veteran claims that a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, the VA must provide a new examination. See Olsen v. Principi, 3 Vet. App. 480, 482(1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). In this case, the Veteran is certainly competent to testify as to the use of medication for his hypertension as well as to his current blood pressure readings. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Thus, a medical examination assessing the current severity of the Veteran's hypertension disability is necessary in this case. Ongoing treatment records, if any, should also be obtained, to include any treatment records from the Boise VAMC dating since November 2009. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC must contact the Veteran and request that he provide the names and addresses of all medical care providers who have treated him for hypertension since 2009. After securing the necessary release, if any, the RO/AMC should obtain any records which are not already in the claims file. Additionally, ongoing VA treatment records, if any, must be obtained from the Boise VAMC dating since November 2009. If the RO/AMC cannot locate the requested records, the RO/AMC must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO/AMC must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant and his representative must then be given an opportunity to respond. 2. Thereafter, the RO/AMC should schedule the Veteran for an examination to determine the current level of severity of his hypertension. The claims folder, to include any records contained in Virtual VA, and a copy of this Remand must be made available to the examiner who should indicate on the examination report that (s)he has reviewed the folder in conjunction with the examination. Any indicated studies should be performed and the examination report should comply with all AMIE protocols for rating hypertension. 3. After the development requested has been completed, review the examination report to ensure that it is in complete compliance with the directives of this REMAND. If the examination report is deficient in any manner, the RO/AMC must implement corrective procedures at once. 4. Thereafter, readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, issue a supplemental statement of the case, and afford the Veteran and his representative an opportunity to respond. Thereafter, the case must be returned to the Board, if in order. 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs