Citation Nr: 1318060 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 09-39 462 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for a skin condition of the face, neck and groin. 3. Entitlement to service connection for a bilateral foot disability. 4. Entitlement to service connection for a bilateral ankle disability. 5. Entitlement to service connection for a left leg disability. 6. Entitlement to service connection for a right leg disability. 7. Entitlement to service connection for a bilateral knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Schulman, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from November 1968 to May 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina which denied entitlement to service connection for all of the claimed disorders. The Veteran appealed the denial on this decision, and the matter is now before the Board. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal which have not already been associated with the claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran is claiming entitlement to service connection for a skin disability, hypertension, a bilateral foot disability, a bilateral ankle disability, a bilateral knee disability, and right and left leg disabilities. However, the Veteran has not been afforded a VA examination relating to any of these disabilities and before the Board can properly adjudicate his claims, examinations must be sought for the reasons discussed below. In disability compensation claims, VA must provide a medical examination and medical opinion 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 claimant 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 the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to the factor of relationship of current disability to service (or, by analogy, to a service-connected disability), the Court has indicated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and a veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon, 20 Vet. App. at 83; see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service). Service Connection for a Skin Disability The Veteran contends that he has a face, neck, and groin skin rash which is due to exposure to herbicides including Agent Orange. The Veteran's service personnel records confirm service in the Republic of Vietnam from June 1969 until March 1970. Accordingly the Board finds that the Veteran is presumed to have been exposed to herbicide agent. 38 C.F.R. § 3.307(a). The Veteran is competent to report observable symptoms such as a rash, and his statements endorsing a rash on his face, neck and groin are thus competent. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Additionally, the Veteran has suggested that these symptoms began in service, and without a medical opinion commenting on the diagnostic nature of the claimed disability and on the relationship of the Veteran's service and his claimed skin disability, the Board cannot properly adjudicate the Veteran's claim. The RO must provide the Veteran with a VA examination. Service Connection for Hypertension In an August 2007 statement, the Veteran indicated that his hypertension began during service due to stress associated with his job. He also endorsed having been diagnosed with hypertension during service. In addition, the Veteran's representative has argued that a medication the Veteran received while in service to treat malaria is known to cause elevated blood pressure and that this may have resulted in his current hypertension diagnosis. In making this claim, the representative cites to a study (not of record) based on a report of the U.S. Food and Drug Administration. A VA treatment record from May 2005 indicates an assessment of stable hypertension, and a May 2007 VA record also indicates an active hypertension diagnosis. In December 2007 the Veteran underwent a pre-operative evaluation relating to a colonoscopy and the Veteran's physiological assessment noted that he had hypertension. In April 2008, the Veteran was assessed by a VA healthcare provider with stable hypertension. The same assessment was reached by VA in November 2008. Based on the foregoing, the record includes evidence of current hypertension, evidence on in-service injury in the form of work-related stress or medication, and evidence that his in-service injury may be related to his current hypertension. Without a medical opinion commenting on the relationship of the Veteran's service and his current hypertension, the Board cannot properly adjudicate the Veteran's claim. The RO must provide the Veteran with a VA examination. Service Connection for a Bilateral Foot and Ankle Disabilities In the Veteran's August 2007 claim for service connection, he indicated that he has been diagnosed with degenerative joint disease of the feet and ankles, and that symptomatology began during basic training. While treatment records do not reflect any diagnosis referable to the feet or ankles, the Veteran is competent to report what a medical professional has been told by a medical professional. The Court has previously noted, "the connection between what a physician said and the layman's account of what he purportedly said, filtered as it was through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute 'medical' evidence." Robinette v. Brown, 8 Vet. App. 69, 77 (1995). However, given the low threshold of McLendon in establishing the duty to provide a VA examination, the Board finds that the Veteran's report of diagnoses represents evidence of a current disability. Based on the foregoing, a VA examination is necessary to identify the nature, if any, of the Veteran's current foot and ankle disability. If the Veteran does have a disability of the feet or ankles, an opinion must be offered regarding the relationship between such disabilities and in-service trauma during basic training. Service Connection for a Bilateral Knee Disability In December 2007 the Veteran underwent a pre-operative evaluation relating to a colonoscopy. In reviewing the Veteran's physiological assessment, it was noted that he had arthritis of the knees. In November 2008, the Veteran was assessed with degenerative joint disease of the spine and knee, and he agreed to get a neurosurgery opinion relating to the back and knee. On VA treatment in February 2010, the Veteran complained of knee arthralgias, but evaluation revealed no knee trauma. Based on the foregoing, a VA examination is necessary to identify the nature, if any, of the Veteran's current knee disability. If a disability of one or both knees is identified, an opinion must be offered regarding the relationship between such disabilities and in-service trauma during basic training. Service Connection for a Right Leg Disability The Veteran contends that he injured his right leg during service while "in physical training," and that he has had chronic pain, swelling, and stiffness with limited motion. Specifically, the Veteran has stated that his leg disability relates to having worn combat boots while running and marching during basic training. The Veteran has said that his symptoms are the result of arthritis. The Veteran is competent to report on symptoms of pain, swelling, stiffness and limited motion as these are observable symptoms. Layno, 6 Vet. App. at 470. Furthermore, the Veteran has indicated that these symptoms began in service and have been unremitting since that time. A VA examination has not been conducted, and the diagnostic nature of the Veteran's right leg disability is unknown. Thus, in order to for the Board to properly adjudicate the Veteran's claim the RO must provide the Veteran with a VA examination. Service Connection for a Left Leg Disability Service treatment records reflect that on enlistment examination in August 1968 the Veteran's lower extremities were normal. However, separation examination in May 1970 revealed a left leg scar. On VA treatment in December 2005, the Veteran stated that he was wounded below his left knee during active duty. In his August 2007 claim for service connection, the Veteran stated that he injured his leg during service and that he now has numbness associated with the injury. The presence of a scar on the left leg at separation tends to corroborate the Veteran's reports of an in-service left leg injury in spite of the lack of in-service records of such an injury. Before his claim may properly be adjudicated, the Veteran must be provided a VA examination to identify the nature of any current left leg disability and an opinion regarding the relationship of a current left leg disability to an in-service left leg injury. Accordingly, the issue of service connection for hypertension, bilateral foot and ankle disabilities, bilateral knee disabilities, and a left leg disability are REMANDED for the following actions: 1. Ask the Veteran to identify all relevant VA and non-VA treatment records. Once identified, appropriate steps should be taken to associate any relevant records with the claims file. 2. Schedule the Veteran for a VA examination to determine the nature and likely etiology of his hypertension. The Veteran's VA claims folder must be made available to the examiner for review in connection with the examination. The examiner should elicit from the Veteran and record a complete clinical history referable to hypertension, and the examiner should also report all current diagnoses relating to elevated blood pressure. For each of the identified diagnoses, the examiner should state whether it is at least as likely as not that the disorder had its onset in service, was manifested to a compensable degree within one year after separation from service or is otherwise related to service. In making such determinations, the examiner should specifically comment on the etiological relationship between in-service job stress and in-service malaria medication as they relate to the Veteran's current disorder. 3. Schedule the Veteran for VA examination of the feet, ankles, legs and knees. The Veteran's VA claims folder must be made available to the examiner for review in connection with the examination. The examiner should elicit from the Veteran and record a complete clinical history referable to the feet, ankles, legs and knees, and the examiner should also report all current diagnoses relating to the feet, ankles, legs and knees, including whether there is a current diagnosis of degenerative joint disease. For each of the identified diagnoses, the examiner should state whether it is at least as likely as not that the disorder had its onset in service or is otherwise related to service. If there is currently diagnosed degenerative joint disease, the examiner should also indicate whether it is at least as likely as not that the disorder was manifest to a compensable degree within one year after separation from service. In making such determinations, the examiner should specifically comment on the relationship between basic training and the Veteran's current disorder(s). Ask the examiner to specifically consider the Veteran's reports of feet, ankle, leg, and knee injuries due to running in combat boots during service including during physical training in service. Additionally, ask the examiner to consider whether scaring on the left leg caused, or is related to, any current left leg disability. 4. After completing all indicated development, readjudicate all claims for service connection remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, a Supplemental Statement of the Case should be furnished to the Veteran, and he should be afforded a reasonable opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters 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). _________________________________________________ K. J. ALIBRANDO 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).