Citation Nr: 1322129 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 05-38 979A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for a right hip disability, to include as secondary to service-connected knee disabilities or service-connected hidradenitis suppurativa with scarring. 2. Entitlement to an initial evaluation in excess of 10 percent for hidradenitis suppurativa with scarring. 3. Entitlement to an initial evaluation in excess of 10 percent for right knee chondromalacia. 4. Entitlement to an initial evaluation in excess of 10 percent for right knee laxity. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant, his spouse and his caregiver ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran had active service from October 1979 to January 1982. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a November 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The rating decision granted service connection for hidradenitis suppurativa with scarring, evaluated as 10 percent disabling, and right knee chondromalacia, evaluated as 10 percent disabling. It denied service connection for a bilateral hip disability. During the pendency of the appeal, a December 2009 rating decision granted service connection for left hip degenerative arthritis, evaluated as 10 percent disabling, and service connection for right knee laxity, evaluated as 10 percent disabling. 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 A preliminary review of the record indicates that these claims require additional development. During a May 2013 hearing before the undersigned Veterans Law Judge, the Veteran testified that he received all his medical care from VA. The most recent VA treatment record in the claims file is dated more than three years ago, in January 2010, from the Beckley VA Medical Center (VAMC). The Veteran's Virtual VA eFolder contains no medical records. It appears that the Veteran also receives treatment at other VA facilities. A January 2010 report of treatment at the Beckley VAMC relates that the Veteran was to have his knees evaluated at the Huntington VAMC. The report of a March 2010 VA skin examination relates that the Veteran received treatment every 6 months at the dermatology clinic at the Richmond VAMC. VA has a duty to assist the appellant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c)(2) (2012). There are also heightened obligations to assure that the record is complete with respect to Federal Government records. 38 U.S.C.A. § 5103A ; 38 C.F.R. § 3.159(c). VA treatment records are deemed to be constructively of record in proceedings before the Board. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). As it appears that outstanding VA treatment records exist, any VA treatment records not in the record before the Board should be obtained. The most recent VA examination of the Veteran's hidradenitis suppurativa was conducted more than three years ago, in March 2010. During the May 2013 hearing, the Veteran testified that this disability now required sterile baths. The March 2010 VA examination report does not refer to them, suggesting that the disability has increased in severity since that time. The most recent VA examination of the Veteran's right knee disability was also conducted in March 2010. When 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, 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). Thus, in this case additional VA examinations are required to determine the current severity of the Veteran's service-connected disabilities. During the May 2013 hearing, the Veteran testified that a VA orthopedic doctor told him that his use of antibiotics and steroids for hidradenitis suppurativa caused bone death in the Veteran's knees and hips. The Veteran stated that the VA physician offered this opinion in the Veteran's treatment records. The Veteran also stated that altered gait resulting from his knee disabilities had caused or aggravated his right hip disability. The Veteran is competent to report that his right hip symptoms began at the same time, or after, he incurred his service-connected knee injuries. See Falzone v. Brown, 8 Vet. App. 398, 405 (1995). Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). Since the evidence raises the possibility that the Veteran's service-connected hidradenitis suppurativa, left knee disability and right knee disabilities caused or aggravated his right hip disability, the Board finds that a remand is necessary in order for the RO to obtain a VA medical opinion. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file and the Virtual VA eFolder copies of all VA medical records that are not already of record, to include all records dated after January 12, 2010, from the VAMCs in Beckley, Huntington and Richmond. 2. After completion of the foregoing, schedule the Veteran for an examination by an appropriate VA examiner to determine the nature and current level of severity of the Veteran's service-connected hidradenitis suppurativa with scarring. The claims file and Virtual VA eFolder must be made available to the examiner. All pertinent findings should be identified and a complete rationale for all opinions expressed must be provided. 3. Schedule the Veteran for an examination by an appropriate VA examiner to determine the nature and current level of severity of the Veteran's service-connected right knee chondromalacia and laxity. The claims file and Virtual VA eFolder must be made available to the examiner. All pertinent findings should be identified and a complete rationale for all opinions expressed must be provided. 4. Schedule the Veteran for an examination by an appropriate VA examiner to determine the nature, extent and etiology of any disability of the right hip that may be present. The claims file and Virtual VA eFolder must be made available to the examiner. Following a review of the relevant medical evidence in the claims file, the medical history (including that set forth above), and the results of the clinical evaluation and any tests that are deemed necessary, the examiner is asked to opine whether it is at least as likely as not (50 percent or more likelihood) that any current right hip disability was caused or aggravated by (1) medication taken to treat the Veteran's hidradenitis suppurativa (including steroids and antibiotics); (2) the Veteran's service-connected left knee chondromalacia; (3) the Veteran's service-connected right knee chondromalacia; or (4) the Veteran's service-connected right knee laxity. A complete rationale for all opinions expressed must be provided. 5. Then, readjudicate the Veteran's claims. If any benefit sought on appeal remains denied, the appellant and his representative should be provided a supplemental statement of the case and afforded an opportunity to respond. The case should be returned to the Board for appellate review. The appellant 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). _________________________________________________ M. E. LARKIN 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).