Citation Nr: 1320734 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 09-42 740 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for a skin disability on the back. 3. Entitlement to an initial rating in excess of 20 percent for a right ankle disability prior to November 18, 2008, and in excess of 10 percent as of November 18, 2008. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran had active service from March 1988 to January 1992 These matters come to the Board of Veterans' Appeals (Board) on appeal from October 2008 and February 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. An October 2008 rating decision granted service connection and assigned an initial 20 percent rating for a right ankle disability and denied claims for service connection for hypertension and tinea versicolor on the back. A February 2009 rating decision decreased the 20 percent rating for the right ankle disability to 10 percent, effective November 18, 2008, and granted a separate 10 percent disability rating for a scar associated with the right ankle disability, effective November 18, 2008. In the Veteran's September 2009 substantive appeal, he requested a Travel Board hearing. However, in October 2009 correspondence, the Veteran indicated that he no longer desired to have a hearing and to forward the case to the Board for a decision. Therefore, there are no outstanding hearing requests of record. 38 C.F.R. § 20.704(e) (2012). The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C. REMAND With regard to the claim for higher ratings for the Veteran's service-connected right ankle arthralgia, the Veteran last underwent a VA examination in February 2009, more than four years ago. Since that time, the Veteran has asserted that he has chronic pain related to his right ankle arthralgia and that his impairment is more severe than compensated by the current disability ratings. Therefore, to ensure that the record has evidence of the current severity of the Veteran's service-connected right ankle arthralgia, a more contemporaneous examination is warranted. Green v. Derwinski, 1 Vet. App. 121 (1991); Caffrey v. Brown, 6 Vet. App. 377 (1994). Furthermore, the Veteran contends that his ability to work has been impacted due to his service-connected right ankle arthralgia. On remand, the RO should also adjudicate whether this claim meets the criteria for submission for extra-schedular consideration. 38 C.F.R. § 3.321(b)(1) (2012); Thun v. Peake, 22 Vet. App. 111 (2008). With regard to the claims for service connection, in a May 2008 memorandum, the RO issued a formal finding of unavailability of the Veteran's service medical records after requesting a search of the National Personnel Records Center (NPRC) and Records Management Center (RMC). In a case such as this where the Veteran's service medical records are unavailable through no fault of his own, there is a heightened obligation for VA to assist him in the development of his claim. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The heightened duty includes obligation to search for alternative medical records which might verify the Veteran's statements. Moore v. Derwinski, 1 Vet. App. 401 (1991). Alternate sources of evidence may be used in a claim where there are missing records. Those sources include statements from service medical personnel; buddy statements; employment physical examinations; medical evidence from hospitals and clinics; evidence from private physicians who may have treated the claimant, especially soon after separation; and letters written during service. In the Veteran's claim for VA benefits, he indicated that he had received treatment for hypertension at Fort Sill, Oklahoma from August 1991 to June 2007. The Board also notes that in an April 2008 letter, a fellow service member stated that he recalled a time while stationed with the Veteran at Fort Sill, Oklahoma, when the Veteran was released from a paint detail because he had issues with his blood pressure. Because clinical medical records are sometimes filed under the name of the facility, and not the Veteran, there may be records related to the Veteran's medical treatment while in Fort Sill, Oklahoma are available at the NPRC. In addition, service personnel records confirm that the Veteran was in Saudi Arabia from October 1990 to April 1991. However, there is no pre deployment or post deployment examination report associated with the claim file. Therefore, a remand is necessary to make appropriate attempts to obtain any available records, to include records from the facility at Fort Sill, Oklahoma, and any service examination reports. The Board also notes that of record in the claims file is a copy of the Veteran's February 1988 enlistment physical examination. At that time, the Veteran's heart and skin were evaluated as clinically normal. His blood pressure was 138/78. There was no indication that the Veteran had hypertension at the time of enlistment. On a health questionnaire for dental treatment signed by the Veteran in January 1992 and by various dentists, dated from May 1988 to January 1992, it was indicated that the Veteran had not been under a physicians care in the last two years, had not had any serious illness in the past, had not had a change in health in the last two years, and that the Veteran did not have high blood pressure or skin rash. An April 1991 hospital discharge summary from R. L. Thompson Strategic Hospital at Carswell Air Force base shows that on admission, the Veteran was healthy, had no significant illnesses, and that he took no medication. Private pharmacy records show that the Veteran was prescribed Norvasc tablets as early as May 1999 by a private physician, S. Amalraj. The Veteran has indicated that Dr. Amalraj has passed away and that those records are unavailable. Private medical records from D. Canchola, M.D. show that the Veteran was seen from July 2005 to August 2005 for various medical complaints, to include uncontrolled hypertension. A July 2005 St. Paul University Hospital record shows that the Veteran had a history of high blood pressure. There was no indication of a skin rash and examination revealed normal skin color with no rash. While seeking VA medical care as a new patient in May 2007, the Veteran reported that he had hypertension that was diagnosed in 1992, and that he had been on and off medication ever since. The Veteran denied any significant skin problems. Examination revealed that the Veteran had no skin rashes or lesions. The diagnoses included hypertension. The Veteran has not yet been afforded a VA examination as to his claim for service connection for hypertension. While the available service medical records are negative for indications that the Veteran had hypertension in service, or private medical records showing a diagnosis within one year after discharge, the Board finds the Veteran credible as to his statement of medical history recorded in a May 2007 VA medical record that his hypertension was first diagnosed in 1992, a time that coincides either with his last month of active duty or within a year after discharge from service. Rucker v. Brown, 10 Vet. App. 67 (1997) (statements made to physicians for purposes of diagnosis and treatment are more trustworthy because the declarant has a strong motive to tell the truth to receive proper care). While itself insufficient to award service connection, that evidence is highly relevant to the Veteran's hypertension claim. As a lay person, the Veteran has not been shown to have the requisite clinical expertise to opine as to medical etiology or render medical opinions or diagnoses. Accordingly, the Board finds that, on remand, he should be provided a VA examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4) (2012). With regard to the claim for service connection for a skin rash, the Veteran was provided a VA examination in September 2008. The examiner noted that the Veteran reported that he developed a rash on his back approximately one month after returning from the Persian Gulf. The examiner diagnosed tinea versicolor on the back. The examiner opined that the Veteran's skin rash was less likely than not related to service. The basis for that opinion was that there was nothing found in the Veteran's claims file as to receiving treatment in service, so the examiner could not relate the Veteran's rash to his service. Thus, it appears that the examiner based the opinion solely on the absence of treatment in service, instead of the entire evidence of record. However, the evidence shows that the service records in this case may be incomplete. In rating a disability, the disability is to be viewed in relation to its whole recorded history. 38 C.F.R. § 4.1 (2012). Further, while the record is devoid of any evidence of pertinent post-service treatment for several years after the Veteran's separation from service, the mere absence of clinical evidence is not an automatic bar to his claim. VA is required to consider the Veteran's assertions of a continuity of relevant symptomatology that has persisted since his active service. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Moreover, the Board cannot summarily determine that lay assertions lack credibility merely because they are unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In light of the foregoing, the Board finds that an additional VA examination is necessary to fully and fairly assess the merits of the Veteran's claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012). Although VA medical records from the North Texas Health Care System, dated from May 2007 to June 2009, have been associated with the claims file and those from December 2010 to November 2011 have been associated with the Virtual VA electronic claims file, VA medical records prior to May 2007, from June 2009 to December 2010, and after November 2011 are not included. Those records are in VA possession. The duty to assist requires that VA make further attempts to obtain those records. 38 C.F.R. § 3.159(c), (d), (e) (2012). Accordingly, the case is REMANDED for the following actions: 1. Request the Veteran's clinical records from the NPRC, RMC, and any other appropriate repository for federal records, for the medical facilities located at the Fort Sill, Oklahoma from March 1998 to January 1992. Clinical records are sometimes filed under the facility name rather than the Veteran's name. Also request any pre and post deployment physical examinations related to the Veteran's period in Saudi Arabia. All efforts to obtain the records should be fully documented. 2. Provide the Veteran with an additional opportunity to submit any additional service medical records in his possession or to identify and authorize VA to obtain any outstanding VA or non-VA medical records pertaining to his claims on appeal. 3. Obtain and associate copies of the Veteran's VA medical records with the claims folder, to specifically include all outstanding medical records from the VA North Texas Health Care System, dated prior to May 2007, from June 2009 to December 2010, and from November 2011 to the present, and all VA medical records from any other VA medical centers identified by the Veteran. 4. After the above development has been completed, schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected right ankle arthralgia. The claims folder must be reviewed by the examiner, and the review should be noted in the report. The examiner should provide a rationale for any opinion expressed and reconcile that opinion with all pertinent evidence of record, including all relevant VA medical records and any lay evidence suggesting that Veteran's service-connected right ankle problems are worse than shown on his prior examinations. The VA examiner should specifically address the following: (a) Set forth all current complaints, findings, and diagnoses pertaining to right ankle arthralgia. (b) Conduct all necessary tests, to include X-rays, and range-of-motion and repetitive motion studies. All ranges of motion should be expressed in degrees. (c) Describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. Additional limitation of motion during flare-ups and following repetitive use due to limited motion, excess motion, fatigability, weakened motion, incoordination, or painful motion should be noted. If the Veteran describes flare-ups of pain, the examiner must offer an opinion as to whether there would be additional limits on functional ability during flare-ups. All losses of function due to problems such as pain should be equated to additional degrees of limitation of flexion and extension beyond that shown clinically. (d) Discuss whether any right ankle disability is productive of any additional functional impairment. (e) State what impact, if any, the Veteran's right ankle arthralgia disability has on his occupational functioning and daily living. 5. Then, schedule the Veteran for a VA examination to assess the etiology hypertension. The examiner must review the claims file and must note that review in the report. All findings and conclusions should be supported by a rationale, and the examiner should reconcile the opinion with all other evidence of record, including the Veteran's service medical records, private medical records, and VA medical records. The examiner must consider the Veteran's lay statements that he was diagnosed with hypertension in 1992. Additionally, the examiner must acknowledge and discuss any reports of a continuity of symptomatology since service. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Specifically, the VA examiner's opinion should address whether it is as likely as not (50 percent probability or greater) that hypertension first manifested in service or within a year after discharge, or is otherwise related to active service. 6. Then, schedule the Veteran for a VA examination to assess the etiology of any currently diagnosed skin disorder. The examiner must review the claims file and must note that review in the report. All findings and conclusions should be supported by a rationale, and the examiner should reconcile the opinion with all other evidence of record, including the Veteran's service medical records, private medical records, VA medical records, and the September 2008 VA medical opinion. The examiner must acknowledge and discuss any reports of a continuity of symptomatology since service. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Specifically, the VA examiner's opinion should address whether it is as likely as not (50 percent probability or greater) that the Veteran's skin rash first manifested in service or is otherwise related to his period of active service, to include service in Southwest Asia. 7. Then, readjudicate the claims, to include whether referral for consideration of an extraschedular rating for the right ankle disability is warranted. 38 C.F.R. § 3.321(b)(1) (2012). If any decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ Harvey P. Roberts 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).