Citation Nr: 1321372 Decision Date: 07/03/13 Archive Date: 07/12/13 DOCKET NO. 09-24 581 ) 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 bilateral leg disability. 3. Entitlement to service connection for tinnitus. 4. Entitlement to an initial rating greater than 10 percent for eczema prior to September 22, 2009, and greater than 30 percent from September 22, 2009 to the present day. 5. Entitlement to service connection for a left eye corneal scar. 6. Entitlement to service connection for a bilateral eye disability other than a left eye corneal scar. 7. Entitlement to an initial rating greater than 10 percent for a right knee strain. 8. Entitlement to an initial rating greater than 10 percent for a lumbar strain. 9. Entitlement to a compensable rating for bilateral pes planus. 10. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD V. Chiappetta, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from October 1977 to April 1978, from January 2004 to February 2005 and from October 2005 to February 2007. This matter is before the Board of Veterans' Appeals (the Board) on appeal of an August 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified at a Travel Board hearing which was chaired by the undersigned at the Waco RO in March 2013. A transcript of the hearing has been associated with the Veteran's VA claims folder. At the hearing, the Veteran withdrew his appeal on the record with respect to his claims of entitlement to an initial rating in excess of 10 percent for eczema, and entitlement to service connection for hypertension, a bilateral leg disability, and tinnitus. The Veteran formally withdrew these claims in writing on the same day as the hearing. The Board notes that the Veteran's original compensation claim included, among other things, a request for service-connection for a bilateral eye disability. Indeed, during the course of the appeal, multiple eye disabilities, to include pingueculae of both eyes, presbyopia of both eyes, racial melanosis of both eyes and a left eye corneal scar have been diagnosed. See May 2008 VA examiner's report, at 2-3. As discussed in detail below, the Board finds that the evidence currently of record is sufficient to establish a positive link between the Veteran's current left eye corneal scar and his service. As such, service-connection for that disability will be awarded herein. Because the evidence of record is not sufficient to decide whether the Veteran is entitled to service connection for any other diagnosed eye disability at this time, the Board has bifurcated this issue and will remand the remainder of the Veteran's service-connection claim for further evidentiary development below. The Board adds that the Veteran testified in March 2013 that he last worked in 2008 doing temporary jobs. He indicated that he was "disabled" at age 55, and was recently awarded disability benefits from the Social Security Administration (SSA), possibly in part, due to his service-connected knee and back disabilities, as well as his service-connected posttraumatic stress disorder (PTSD). See Board Hearing Tr. at 13-14. The U.S. Court of Appeals for Veterans Claims (Court) has held that a claim for TDIU is part of an increased rating claim or the appeal of an initial rating when such is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Based on the above-referenced testimony and the Court's holding in Rice, the Board finds that the question of whether higher ratings may be warranted based on entitlement to TDIU has been raised by the record, and is now part of the Veteran's appeal. For the sake of clarity, the Board has separately listed this issue above. The Veteran's right knee, lumbar spine, pes planus, bilateral eye and TDIU claims are addressed in the REMAND portion of the decision below and are REMANDED to the agency of original jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. At the March 2013 hearing, the Veteran presented testimony and submitted a written statement specifically withdrawing the issues of service connection for hypertension, a bilateral leg disability and tinnitus, as well as the issue of a higher initial disability rating for eczema. 2. The evidence of record favors a finding that a relationship exists between the Veteran's current left eye corneal scar and his active duty military service. CONCLUSIONS OF LAW 1. The criteria for a withdrawal of the Veteran's Substantive Appeal have been met as to the issues of service connection for hypertension, a bilateral leg disability and tinnitus, as well as the issue f of a higher initial disability rating for eczema. 38 U.S.C.A. § 7105(a) (West 2002); 38 C.F.R. §§ 20.200, 20.202, 20.204(b) (2012). 2. The Veteran's left eye corneal scar was incurred during active duty service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to notify and assist The Board has given consideration to the provisions of the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. The RO sent the Veteran a VCAA notice letter addressing his service-connection claim for an eye disability in September 2007. The Board need not discuss in detail the sufficiency of this letter in light of the fact that the Board is granting in full the claim as it pertains to his currently diagnosed left eye corneal scar herein. Any potential error on the part of VA in complying with the provisions of the VCAA has been rendered moot by the Board's grant of the benefit sought on appeal. All appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). As noted above, the Veteran has withdrawn the issues of service connection for hypertension, a bilateral leg disability and tinnitus, as well as the issue of a higher initial rating for eczema. Each issue will be dismissed below. II. Dismissal of withdrawn claims An appeal consists of a timely filed Notice of Disagreement in writing, and after a Statement of the Case has been furnished, a timely filed Substantive Appeal. See 38 U.S.C.A. § 7105(a) (West 2002); 38 C.F.R. § 20.200 (2012). A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. See 38 C.F.R. §§ 20.202, 20.204(b) (2012). Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. See 38 C.F.R. § 20.204(b) (2012). As noted above, the Veteran perfected an appeal of the issues of service connection for hypertension, a bilateral leg disability and tinnitus, as well as the issue of a higher initial disability rating for eczema. At the March 2013 hearing, and in a written statement submitted the same day, the Veteran specifically indicated his desire to withdraw each of these claims from appellate status. See Board Hearing Tr. at 2; see also the Veteran's March 21, 2013 Statement in Support of Claim. The Board finds that the Veteran's withdrawal request qualifies as a valid withdrawal of the above-referenced perfected issues on appeal. See 38 C.F.R. § 20.204 (2012). Accordingly, there remains no allegation of error of fact or law for appellate consideration as to these issues, and they are dismissed. III. Service connection for a left eye corneal scar In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303. Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2012). To establish service connection, a claimant must generally show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the 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 essence, the Veteran contends that he has a current left eye corneal scar that resulted from injury to the left eye from a foreign body during his service in Iraq in 2004. It is undisputed that the Veteran has a current left eye corneal scar. See May 2008 VA examiner's report at 2-3 (diagnosing an inferior central old 1 mm corneal foreign body scar OS). The Veteran's service treatment records also confirm that he had a foreign body removed from his eye while stationed at Camp Victory in Iraq in 2004. See Veteran's March 2004 Chronological Record of Medical Care (indicating that the Veteran had his eye flushed three weeks prior, but still experienced the sensation of a foreign body in his eye, with conjunctivitis). Shortly before separation, in January 2007, the Veteran sought treatment for cloudy eyesight and specifically reported that he was experiencing the same eye problems as those he experienced when he was in Iraq. See January 4, 2007 Chronological Record of Medical Care. Thus, Shedden elements (1), current disability, and (2) in-service injury, are both satisfied. With respect to crucial element (3), nexus or relationship, the only medical opinion of record addressing the etiology of the Veteran's left eye corneal scar was provided by a May 2008 VA examiner who specifically determined that the Veteran's scar was received during his service in Iraq from a foreign body injury. See May 2008 VA examiner's report, at 2-3. Although the RO acknowledged the Veteran's current left eye scar, his documented in-service left eye injury, and the May 2008 VA examiner's determination that this scar was incurred due to a foreign body injury in Iraq, it appears that the RO denied the Veteran's service connection solely because the Veteran's service treatment records lacked specific documentation of a left eye corneal scar. See RO's August 2008 rating decision at 10-11. Crucially, the Court of Appeals for the Federal Circuit has made clear that a lack of documented in-service treatment is not necessarily fatal to a claim for service connection. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (2006). In light of the Federal Circuit's holding in Buchanan, the May 2008 VA examiner's uncontroverted positive nexus opinion, and the fact that no medical evidence of record suggests that the Veteran's current corneal scar was caused by any other post-service eye injury, the Board finds that the evidence of record favors a finding that the Veteran's current corneal scar was incurred during service. Shedden element (3) is accordingly satisfied. With resolution of any doubt in favor of the Veteran, the Board finds that service connection is warranted a left eye corneal scar. ORDER The appeal of entitlement to service connection for hypertension is dismissed. The appeal of entitlement to service connection for a bilateral leg disability is dismissed. The appeal of entitlement to service connection for tinnitus is dismissed. The appeal of entitlement to an initial rating greater than 10 percent for eczema prior to September 22, 2009 and greater than 30 percent from September 22, 2009 to the present day is dismissed. Service connection for a left eye corneal scar is granted. REMAND After having carefully considered the matter, and for reasons expressed immediately below, the Board believes that the Veteran's remaining claims must be remanded for further evidentiary development. 38 C.F.R. § 19.9 (2012). I. Social Security Administration (SSA) records At the March 2013 hearing, the Veteran specifically testified that he was awarded SSA disability benefits during the previous year, which he believed were based at least in part on his back and knee disabilities. See Board Hearing Tr. at 13-14. The record does not reflect that any request has been made for SSA records. Any records associated with that claim, particularly medical records, could shed additional light on the issues currently before the Board. As such, these records should be obtained for consideration in connection with the instant appeal. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) (finding that as long as a reasonable possibility exists that SSA records may be relevant to a Veteran's claim, VA must assist him or her in obtaining the records); see also Murincsak v. Derwinski, 2 Vet. App. 363 (1992) (holding that VA's duty to assist includes obtaining records from SSA and giving them appropriate consideration and weight in determining whether to award or deny VA disability compensation benefits). II. VA examinations A. Initial rating and TDIU VA last evaluated the severity of the Veteran's current right knee, lumbar spine and bilateral pes planus disabilities in July 2012. At these examinations, in pertinent part, the Veteran neither complained of nor exhibited signs of any right knee instability or radicular pain from the low back down either leg. With respect to his pes planus, the Veteran indicated at the July 2012 foot examination that his foot pain symptoms were indeed relieved by arch supports such as inserts or orthotics. Crucially however, at the recent March 2013 hearing, the Veteran testified that each of these disabilities had worsened in severity since his July 2012 VA examinations. See Board Hearing Tr. at 3. Indeed, with respect to his right knee disability, the Veteran indicated that he sometimes falls when he wakes up in the morning, and that he feels like he has lost some range of motion since his last examination. See id. at 3-4. With respect to his lumbar spine, the Veteran testified that he has more stiffness in his back, that he now has difficulty standing and sitting, that he can't get out of bed because of back pain two to three times a week, and that pain radiates down his hips and legs on a daily basis. See id. at 5-7, 12. With respect to his pes planus, in contrast with what he reported at the July 2012 examination, the Veteran specifically asserted at the Board hearing that his shoe inserts do not alleviate his pain symptoms, and that he now has to take them out because they make his feet hurt. See id. at 9. Although new VA examinations are 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); 38 C.F.R. § 3.327 (2012). In light of the Veteran's competent testimony suggesting that his service-connected right knee, lumbar spine and pes planus disabilities may have worsened in severity since they were each last previously examined, the Board finds that new medical examinations are necessary to adequately decide each initial rating claim. As detailed in the Introduction above, the Veteran testified in March 2013 that he last worked in 2008 doing temporary jobs. He indicated that he was "disabled" at age 55, and was recently awarded disability benefits from the SSA, possibly in part, due to his service-connected knee and back disabilities, as well as his service-connected posttraumatic stress disorder (PTSD). The Board finds that based on this testimony, the issue of TDIU is reasonably raised. As noted above, the Court has held that TDIU is encompassed in a claim for increased rating or the appeal of an initial rating when such is reasonably raised in the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, on remand the RO should incorporate consideration of whether the Veteran is entitled to a TDIU award in its readjudication of the Veteran's claim for higher initial disability ratings for his service-connected disabilities. B. Service-connection claim Although the Board has awarded the Veteran service connection for a left eye corneal scar above, the question of whether the Veteran has eye condition other than this scar that is related to his service remains at issue. As noted in the Introduction above, the May 2008 VA examiner diagnosed the Veteran not only with a left eye corneal scar, but also with pingueculae of both eyes, presbyopia of both eyes, and racial melanosis of both eyes. Also noted above, the Veteran's service treatment records do confirm that he sustained an injury to the left eye in due to a foreign body while serving in Iraq in 2004. Further, these service records also demonstrate that the Veteran complained of photosensitivity in March 2004, burning eyes in May 2004, and blurry and cloudy vision in January 2007, and include diagnoses of conjunctivitis and possible iritis. See Veteran's Chronological Records of Medical Care dated March 14, 2004, May 11, 2004 and January 4, 2007. The Veteran's March 2013 testimony suggests that he currently experiences blurriness and light sensitivity today. See, e.g., Board Hearing Tr. at 15. Crucially no medical opinion of record links the Veteran's current diagnoses of pingueculae of both eyes, presbyopia of both eyes, or racial melanosis to the Veteran's service, or rules out any such connections. In light of the fact that the record contains medical evidence demonstrating that the Veteran has current eye disabilities, medical evidence establishing that the Veteran experienced eye trouble during service, lay evidence suggesting that recurrent symptoms may be associated with these in-service eye troubles, but no lay or medical evidence sufficient to allow the Board to make an informed decision on the Veteran's claim, the Veteran should be scheduled for another eye examination, and a VA medical opinion addressing the etiology of any diagnosed disabilities other than a left eye corneal scar should be obtained. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). III. Ongoing treatment records At the March 2013 hearing, the Veteran alluded to treatment received for his knees and back at VA's medical facilities in Waco, Texas, and for his eyes in Temple, Texas. As it is unclear whether the Veteran is still receiving ongoing treatment for any of the disabilities in question, on remand a request should be made for any outstanding relevant treatment records from these facilities. Accordingly, the case is REMANDED for the following actions: 1. Ask the Veteran to identify the provider(s) of any treatment or evaluation he has received for his service-connected right knee, lumbar spine and pes planus disabilities, as well as his claimed bilateral eye disabilities, and to provide any releases necessary for VA to secure records of such treatment or evaluation. Obtain complete records of all such treatment and evaluation from all sources identified by the Veteran. Two attempts should be made to obtain relevant private treatment records, unless a formal finding can be made that a second request for such records would be futile. See Pub. L. No. 112-154, § 505, 126 Stat. 1165, 1193 (2012). In addition, obtain copies of all relevant VA treatment the Veteran has received from VA's medical facilities in Waco, TX, Temple, TX, or any other VA facility identified by the Veteran that are not already associated with the claims file. Efforts to obtain these records should be memorialized in the Veteran's claims file. If any requested records are unavailable, the claims file should be clearly documented to that effect, and the Veteran must be notified of any inability to obtain these records in accordance with 38 C.F.R. § 3.159(e). 2. Obtain from SSA records pertinent to any claim made by the Veteran for disability benefits as well as the medical records relied upon concerning that claim. If such records are unavailable, the claims file should be clearly documented to that effect. If the SSA records are unavailable, the claims file should be clearly documented to that effect, and the Veteran must be notified of any inability to obtain these records in accordance with 38 C.F.R. § 3.159(e). 3. After completion of the development described in items (1) and (2) above, schedule the Veteran for appropriate VA examinations for the purposes of assessing the nature and severity of his right knee disability, lumbar spine disability and bilateral pes planus. The entire claims file (i.e. both the paper claims file and any relevant medical records contained in Virtual VA), and a copy of this REMAND should be made available and be reviewed by each examiner in conjunction with their respective examinations, and the examiners should confirm that such records were available and reviewed. The examiners should provide opinions as to the following: a.) With respect to the Veteran's right knee and lumbar spine disabilities, the examiner should specifically identify (1) ranges of motion of the Veteran's knee and lumbar spine, including motion accompanied by pain, in degrees; (2) any functional impairments, including upon repetitive testing, due to pain, incoordination, weakened movement, and excess fatigability on use; and (3) with respect to the Veteran's lumbar spine disability in particular, the frequency and duration of any incapacitating episodes occurring during the past 12 months requiring bed rest prescribed by a physician. Additionally, the examiner should identify and assess the current severity of any right or left lower extremity neurological condition associated with the Veteran's service-connected lumbar spine disability. b.) With respect to the Veteran's bilateral pes planus, the VA foot examiner should determine the nature, extent, frequency and severity of any foot impairment related to the bilateral pes planus disability. The examiner should describe any functional impairment caused by the service-connected bilateral pes planus, to include any effects on daily activities. All opinions provided must be thoroughly explained, and a well-reasoned rationale for any conclusions reached should be provided. If any requested opinion cannot be provided without resort to speculation, the examiner should so state, and provide a comprehensive explanation as to why an opinion cannot be provided. 4. After completion of the development described in items (1) and (2) above, scheduled the Veteran for an examination to determine the nature and etiology of his claimed bilateral eye disability or disabilities (other than service-connected left eye corneal scar). The entire claims file (i.e. both the paper claims file and any relevant medical records contained in Virtual VA), and a copy of this REMAND should be made available and be reviewed by each examiner in conjunction with the examination, and the examiner should confirm that such records were available and reviewed. The examiner should first clarify the Veteran's current diagnosis or diagnoses if any, other than his service-connected left eye corneal scar. For each eye disability diagnosed during the course of the appeal (from 2007 to the present), to include pingueculae of both eyes, presbyopia of both eyes, racial melanosis of both eyes and any additional disabilities identified upon examination, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the disability is related to the Veteran's period of active service, to include his documented in-service treatment for a foreign body injury of the left eye, conjunctivitis, burning eyes and cloudy vision. In addition, if any diagnosed eye disability is at least as likely as not caused or aggravated beyond its natural progression by the Veteran's service-connected left eye corneal scar, this should be made clear. All opinions provided must be thoroughly explained, and a well-reasoned rationale for any conclusions reached should be provided. If any requested opinion cannot be provided without resort to speculation, the examiner should so state, and provide a comprehensive explanation as to why an opinion cannot be provided. 5. Following the completion of the foregoing, and after undertaking any other development it deems necessary, review all the evidence of record and readjudicate the service connection and initial rating issues, to include consideration of a TDIU rating. If any of the Veteran's claims are denied, in whole or in part, provide the Veteran and his representative with a supplemental statement of the case (SSOC) and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the 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). ______________________________________________ Paul Sorisio Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs