Citation Nr: 1318533 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 09-26 543 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office (RO) in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a disability manifested by sensitive feet. 2. Entitlement to service connection for a right ankle disability, to include a residual scar above the right ankle. 3. Entitlement to service connection for a bilateral knee disability. 4. Whether new and material evidence has been submitted to reopen a claim for service connection for a right leg disability. 5. Whether new and material evidence has been submitted to reopen a claim for service connection for a back disability, including as secondary to a right leg disability. 6. Entitlement to service connection for a disability manifested by weight gain. 7. Entitlement to service connection for a sleep disorder. 8. Entitlement to service connection for hypertension (high blood pressure), to include as due to sleep disorder. 9. Entitlement to service connection for a psychiatric disorder, described as a change in character, as secondary to weight gain. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The Veteran had active service from July 1983 to June 1986. He also had additional service with the U.S. Naval Reserve, including Active Duty for Training (ACDUTRA). This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the RO in Nashville, Tennessee, and Philadelphia, Pennsylvania. The Veteran's claims file continues to be under the jurisdiction of the RO in Nashville, Tennessee. In June 2010, a Board videoconference hearing was held before the undersigned; a transcript of the hearing is of record. In a November 2010 decision, the Board granted service connection for bilateral hearing loss, and remanded the issues of service connection for a disability manifested by sensitive feet, a right ankle disability, a bilateral knee disability, a disability manifested by weight gain, a sleep disorder, high blood pressure, and a psychiatric disorder, described as a change in character, as secondary to weight gain, and whether new and material evidence has been submitted to reopen claims for service connection for a right leg disability and a back disability as secondary to a right leg disability to the Appeals Management Center (AMC) for additional development. The claims were again remanded to the AMC in November 2012. 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). The issues of entitlement to service connection for a disability manifested by sensitive feet, service connection for a right ankle orthopedic disability, service connection for a bilateral knee disability, service connection for a disability manifested by weight gain, service connection for sleep disorder, service connection for hypertension, to include as secondary to sleep disorder, service connection for psychiatric disorder, whether new and material evidence has been submitted to reopen a claim for service connection for a right leg disability and whether new and material evidence has been submitted to reopen a claim for service connection for a back disability, including as secondary to a right leg disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's current scar above the right ankle is reasonably shown to be a residual of the abscess he suffered during ACDUTRA. CONCLUSION OF LAW The criteria for entitlement to service connection for scar above the right ankle have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Given the favorable disposition of the claim for service connection for scar above the right ankle, the Board finds that all notification and development action needed to fairly adjudicate this claim has been accomplished. II. Analysis Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. Layno v. Brown, 6 Vet. App. 465 (1994). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, a medical opinion was not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In certain instances, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Scar above the right ankle The Veteran's service treatment records show that in August 1986, he reported pain in the medial lower leg. He indicated that he had injured the area on a small table about a week previously and had had bloody type drainage from it since that time. He had treated the problem with alcohol and a dry, sterile dressing. Physical examination showed a 3/4 to 1 inch circular open wound with the center about 1/8 inch deep. There was red serous sanguineous drainage present. The wound was painful to the touch, as was the area about 1 inch around the wound. The Veteran stated that the wound had increased in size over the past week. The diagnostic assessment was non-healing injury to the right medial lower leg. A subsequent physical examination then showed that there was no evidence of infection. An August 19, 1986, examination showed a deep ulcer to the medial tibial area overlying deep saphenous vein. The diagnostic assessment was non-healing ulcer. At an August 20, 1986, dermatology consultation, the Veteran reported mild itchiness around the wound and minimal pain with prolonged standing. He stated that the wound had been draining serasanguineous fluid for the 1st two weeks but hadn't produced such drainage since that time. Physical examination showed a 1/2 inch open would-ulcerative lesion about 6 inches from the medial malleolus with a small amount of serous drainage. There was dry, flaking skin extending about 1 1/2 inches from around the wound. There was also a smaller wound with scab about 3 inches above the main ulcer lesion. The Veteran reported that the wound felt a lot better and he indicated that the swelling had gone down. At the June 2010 Board hearing, the Veteran testified that the wound he suffered during ACDUTRA resulted from a spider or tick bite. He described the intial wound as a gash in the right ankle with an imprint. He was not currently receiving any treatment for any direct residuals of the insect bite. The Veteran noted that the bite resulted in a big sore on his leg. In a February 2013 VA medical opinion, a resident physician found that the Veteran's current scar above the right ankle was less likely than not incurred in or caused by the injury the Veteran suffered during ACDUTRA. The examiner noted that he could find evidence of subsequent injury to the right lower extremity/foot for which the Veteran was seen in the emergency room in 2007. Also, given that the Veteran had had decreased sensation in the right leg per previous examinations, it was as likely as not that the scar was from other injuries. Furthermore, no scar was noted during a December 2012 VA examination. In a March 2013, the December 2012 VA examining resident physician, after reviewing the claims file, including his prior examination report, noted that the Veteran had what he believed to be a spider bite documented in 1986, which was more likely, according to the claims file, a superficial abscess. The Veteran currently had only a very small scar above his right ankle, which was more likely than not caused by his superficial abscess in 1986. The above summarized evidence shows that the Veteran does have a small scar above the right ankle, which constitutes a current disability. See 38 C.F.R. § 4.118. The evidence also shows that he suffered a lesion/abscess in this area in August 1986, during a period of ACDUTRA. There is conflicting evidence as to whether the current scar was caused by the August 1986 injury, with the February 2013 VA physician concluding that it was not and the March 2013 VA physician concluded that it was. This leaves the evidence at least in equipoise as to whether the current scar is a residual of the lesion/abscess during ACDUTRA. Accordingly, service connection for residual scar above the right ankle is warranted. 38 C.F.R. § 3.303; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for residual scar above the right ankle is granted. REMAND Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. In the November 2012 remand, the RO/AMC was instructed to obtain addendum opinions from the December 2010 VA examiner (if available) concerning the etiology of any current bilateral knee, right leg and ankle, and/or foot disabilities. The examiner was specifically instructed to comment on the claimed relationship between the current disabilities and the Veteran's leg muscle pain noted in the service treatment records in August 1983 and the right lower leg lesion noted in August 1986 during Active Duty for Training (ACDUTRA). As the December 2010 VA examiner was not available, a new VA examination was performed in December 2012 and an addendum to the examination report was provided in March 2013. Unfortunately, the new VA examiner only assessed the Veteran's claimed bilateral knee disability and did not address the claimed disabilities of the feet, right ankle and right leg. Also, in considering the bilateral knee disability, the examiner did not address the August 1983 records of leg muscle pain during service. A remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, an additional addendum is required addressing the likely etiology of any current bilateral knee, right ankle, right leg and/or bilateral foot disabilities, with specific consideration of the Veteran's leg muscle pain noted in the service treatment records in August 1983 and the right lower leg lesion noted in August 1986 during Active Duty for Training (ACDUTRA). The November 2012 remand also instructed the RO/AMC to obtain an addendum from the examiner who conducted the December 2010 VA respiratory examination concerning the likely etiology of any current organic sleep disorder. The examiner was also asked to provide an opinion as to whether the Veteran has any underlying disorder manifested by his weight gain/obesity. In providing the opinion concerning the sleep disorder, the examiner was instructed to acknowledge the July 1985 treatment note when the Veteran complained of sleep disturbance, along with the November 1986 reserve examination report indicating that the Veteran fell asleep during an audiological examination. In response, the December 2010 VA examiner provided an addendum opinion in December 2012. Unfortunately, while she did acknowledge that she reviewed the November 1986 record indicating that the Veteran fell asleep during the reserve hearing examination, she did not acknowledge that she reviewed July 1985 record showing the Veteran's complaints of sleep disturbance. Instead, she indicated that there were no entries pertaining to sleep in the Veteran's service treatment records aside from the November 1986 record. Additionally, the examiner did not provide an opinion as to whether the Veteran has any underlying disorder manifested by his weight gain/obesity. Accordingly, an additional addendum is required addressing the likely etiology of any current organic sleep disorder, including sleep apnea with specific consideration of the July 1985 record showing the Veteran's complaints of sleep disturbance, along with the November 1986 record indicating that the Veteran fell asleep during the reserve hearing examination. The examiner should also provide the opinion concerning disability manifested by weight gain/obesity. Stegall, 11 Vet. App. 268, 271 (1998). Additionally, the November 2012 remand instructed the RO/AMC to forward the claims file to the VA examiner who conducted the February 2011 VA psychiatric examination for an addendum medical opinion concerning the likely etiology of any current psychiatric disability. In providing the opinion, the examiner was instructed to discuss and acknowledge the VA treatment records dated in 2009 and 2010 showing that the Veteran took medication for depression, as well as the symptoms reported by the Veteran in VA treatment records in July 2011. The examiner was also instructed to provide an opinion as to whether the Veteran has any underlying disorder manifested by weight gain/obesity. In response, the February 2011 VA examiner provided an addendum opinion in March 2013. Unfortunately, while she did acknowledge the symptomatology reported by the Veteran in July 2011, she did not discuss and acknowledge the VA treatment records dated in 2009 and 2010 showing that the Veteran took medication (i.e. Mirtazapine) for depression. Instead, she found that the records did not reflect a prescription for such medication until May 2012. Accordingly, an additional addendum is required addressing the likelihood that the Veteran has a current psychiatric disorder or had a psychiatric disorder at any time since November 2008, to include any psychiatric disorder manifested by weight gain, with specific consideration of the 2009 and 2010 records indicating that the Veteran was prescribed Mirtazapine, along with the later July 2011 VA treatment record, the 2012 record and any more recent VA records deemed pertinent. If it is determined that the Veteran has a current psychiatric disorder, the examiner should provide an opinion as to the likelihood that it is related to service. Stegall, 11 Vet. App. 268, 271 (1998). Prior to obtaining the addendum opinions, the RO/AMC should make arrangement to obtain the Veteran's complete VA treatment records dated since October 2012. Regarding the claim for service connection for hypertension, in a November 2008 statement, the Veteran alleged that he had been having problems sleeping due to weight gain he experienced during service and that these sleeping problems had caused high blood pressure (along with a change in character). This statement, construed as a claim for direct service connection for hypertension by the RO, also constitutes a claim for hypertension as secondary to the Veteran's claimed sleep disorder. Consequently, the claim for hypertension is inextricably intertwined with the claim for sleep disorder. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue). Accordingly, the claim for hypertension is also subject to the instant remand. Additionally, as the ongoing development in this case includes consideration of the likelihood that the Veteran has any current right leg disability, which is related to service, the issue of whether new and material evidence has been submitted to reopen a claim for service connection for right leg disability is also subject to the instant remand. Further, the issue of whether new and material evidence has been submitted to reopen a claim for service connection for a back disability is subject to the remand as well as it is inextricably intertwined with the claim to reopen for service connection for right leg disability. Harris, 1 Vet. App. 180, 183 (1991). 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. Make arrangements to obtain the Veteran's complete VA treatment records, dated since October 2012. 2. After the foregoing development has been completed, arrange for an addendum opinion by the December 2012 VA examiner. Based on a review of the record, including the December 2010 VA orthopedic examination report and the December 2012 VA examination report with March 2013 addendum, the examiner must answer the following questions: a) In your medical opinion, does the Veteran have any disability of the right ankle and/or right leg, aside from the scarring above the right ankle? b) For each right ankle and/or right leg disability diagnosed (other than scarring), is it at least as likely as not (i.e. a 50 percent or higher probability) that any such disability had its clinical onset during active service or ACDUTRA or is causally linked to any incident of active duty (July 1, 1983 to June 30, 1986) or subsequent ACDUTRA? For each disability diagnosed, the examiner should comment on whether there is any relationship between the current disabilities and the leg muscle pain noted in August 1983 and/or the right lower leg lesion noted in August 1986 (during ACDUTRA). c) In your medical opinion, does the Veteran have any disability of the feet? d) For each foot disability diagnosed, is it at least as likely as not (i.e. a 50 percent or higher probability) that any such disability had its clinical onset during active service or ACDUTRA or is causally linked to any incident of active duty (July 1, 1983 to June 30, 1986) or subsequent ACDUTRA? For each foot disability diagnosed, the examiner should comment on whether there is any relationship between the current disability and the leg muscle pain noted in August 1983 and/or the right lower leg lesion noted in August 1986 (during ACDUTRA). If the December 2012 VA examiner is unavailable or unable to provide this additional medical comment, then have someone else equally qualified provide this additional comment. This may require having the Veteran reexamined, but this is left to the designee's discretion. In any event, the prior or new examiner must discuss the medical rationale of the opinion, if necessary, citing to specific evidence in the record to support conclusions. It is imperative the examining physician review the claims file, including a complete copy of this remand, for the pertinent medical and other history. 3. Forward the claims file to the VA examiner who conducted the December 2010 VA hypertension and respiratory examination and provided the December 2012 addendum medical opinion. Based on a review of the record, including the December 2010 VA examination report, the December 2012 addendum opinion and the pertinent service treatment records mentioned below, the examiner must answer the following questions: (a) Is it at least as likely as not (50 percent probability or greater) that any current organic sleep disorder, such as sleep apnea, had its clinical onset during active service or is related to any in-service disease, event, or injury? In providing this opinion, the examiner should specifically acknowledge both the July 1985 treatment note when the Veteran complained of sleep disturbance and the November 1986 reserve examination report when the Veteran fell asleep during an audiological examination. (b) The examiner should also provide an opinion as to whether the Veteran has any underlying disorder manifested by his weight gain/obesity. If the original December 2010 VA examiner is unavailable or unable to provide this additional medical comment, then have someone else equally qualified provide this additional comment. This may require having the Veteran reexamined, but this is left to the designee's discretion. In any event, the prior or new examiner must discuss the medical rationale of the opinion, if necessary, citing to specific evidence in the record to support conclusions. It is imperative the examining physician review the claims file, including a complete copy of this remand, for the pertinent medical and other history. 4. Forward the claims file to the VA examiner who conducted the February 2011 VA psychiatric examination for an addendum medical opinion. Based on a review of the record, including the February 2011 VA examination report, December 2012 addendum and the pertinent VA treatment records mentioned below, the examiner must answer the following question: (a) Is it at least as likely as not (50 percent probability or greater) that the Veteran has a current psychiatric disorder or had a psychiatric disorder at any time since November 2008, to include any psychiatric disorder manifested by weight gain? In providing this opinion, the examiner should discuss and acknowledge the VA treatment records dated in December 2009, January 2010 and June 2010 showing that the Veteran took medication for depression, as well as the symptoms reported by the Veteran in the VA treatment record from July 8, 2011, 2012 VA records showing medication prescribed for depression, along with any more recent VA treatment records deemed pertinent. (b) If it is determined that the Veteran has a current psychiatric disorder, the examiner should provide an opinion as to whether it is at least as likely as not that (50 percent probability or greater) that the psychiatric disorder had its clinical onset during active service or is related to any in-service disease, event, or injury. If the February 2011 VA examiner is unavailable or unable to provide this additional medical comment, then have someone else equally qualified provide this additional comment. This may require having the Veteran reexamined, but this is left to the designee's discretion. In any event, the prior or new examiner must discuss the medical rationale of the opinion, if necessary, citing to specific evidence in the record to support conclusions. It is imperative the examining physician review the claims file, including a complete copy of this remand, for the pertinent medical and other history. 5. Next, review the medical opinions obtained above to ensure that the remand directives have been accomplished. If all questions posed are not answered or sufficiently answered, return the case to the examiner(s) for completion of the inquiry. 6. Finally, readjudicate the claims on appeal. If any of the benefits remain denied, issue the Veteran and his representative a Supplemental Statement of the Case and allow for a reasonable period 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). ______________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs