Citation Nr: 1324937 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 06-21 166 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for familial polyposis. 2. Entitlement to an initial increased rating in excess of 10 percent for a right knee disability. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The Veteran served on active duty from June 1972 to November 1972, April 1973 to April 1975, and again from September 1975 to September 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for familial polyposis. In May 2005, the Veteran requested a hearing before the Board. In June 2008, he withdrew the request for a hearing. Accordingly, his request for a hearing has been withdrawn. 38 C.F.R. § 20.704(c) (2012). A February 2009 Board decision denied service connection for familial polyposis. The Veteran appealed that Board decision to the United States Court of Appeals for Veterans Claims. While this case was pending before the Court, a Joint Motion for Remand was filed in September 2009. In an Order, also dated in September 2009, the Court granted the Joint Motion, vacated the Board's February 2009 decision, and remanded the case for compliance with the Joint Motion. The Board remanded the claims to the RO in February 2010. In August 2012, the RO granted service connection for right knee chondromalacia. A 10 percent rating was awarded, effective May 2004. In June 2013, the Veteran disagreed with the 10 percent rating. That statement from the Veteran's attorney was characterized as a notice of disagreement to the August 2012 rating decision. Therefore, the claim for an initial increased rating is raised. No statement of the case regarding this matter has been furnished to the Veteran. Therefore, the claim must be remanded to allow the RO to provide the Veteran with a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C. REMAND Unfortunately, this case must be remanded for further development. The Veteran maintains that he warrants service connection for familial polyposis. The claim was previously remanded for an examination to determine if the Veteran's claimed polyposis was a congenital or developmental disease or a congenital defect for service connection purposes. Congenital diseases may be recognized as service-connected if the evidence as a whole shows aggravation in service within the meaning of VA regulations. A congenital or developmental defect is not able to be service-connected in its own right, although service connection may be granted for additional disability due to disease or injury superimposed upon such a defect during service. 38 C.F.R. § 3.303(c) (2012); VAOPGCPREC 82-90 (1990), 55 Fed. Reg. 45,711 (1990). A disease may be defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs, and whose etiology, pathology, and prognosis may be known or unknown, which is capable of improving or deteriorating. In turn, a defect is definable as a structural or inherent abnormality or condition, which is more or less stationary in nature, and not considered capable of improving or deteriorating. VAOPGCPREC 82-90 (1990), 55 Fed. Reg. 45,711 (1990). In this case, the medical evidence of record did not clearly identify whether the Veteran's familial polyposis are a defect or a disease. If the congenital abnormality is a disease, consideration of the Veteran's claim would require a determination as to whether the condition was aggravated during service. VAOPGCPREC 82-90 (1990), 55 Fed. Reg. 45,711 (1990). The Board finds that a medical examination with an opinion was needed. At a May 2012 VA examination, the examiner reviewed the claims file and noted that the Veteran was the first person in his family known to be diagnosed with familial polyposis of the colon. Therefore, the examiner classified the condition as a disease. The examiner also stated that it was less likely as not that the Veteran's familial polyposis was aggravated by active service. The rationale for those findings was that the Veteran's service treatment records only showed one incident of hemorrhoids with rectal bleeding, and one episode of vomiting after taking anti-malarial medication, prophylactically. According to the examiner, neither of those two episodes were clinically significant; they occurred in the 1970s and the Veteran's surgery and diagnosis were much later, in 1991. However, the medical evidence of record shows that the Veteran was recommended for evaluation by his sisters' physician as there was a family history of familial polyposis with his two sisters and paternal grandmother. Additionally, the service treatment records showed that he had hemorrhoids in service, vomiting, and a complaint of "bowel clumps" on bowel movements and on ejaculation. The May 2012 examiner indicated that the vomiting episode and hemorrhoids were clinically insignificant. However, the examiner did not indicate the rationale for the insignificance. The "bowel clumps" were not addressed. Moreover, the Veteran also had a perirectal abscess between his second and third periods of active duty. That also was not addressed in concert with the claim. Finally, a January 2006 VA examination report indicated that the Veteran was carrying familial polyposis coli while in service, although the onset of the polyps could not be determined. That also was not discussed. All of that evidence was of record at the time of the May 2012 VA examination. If a diagnosis is not supported by the findings on the examination report or if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2 (2012). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran should be scheduled for another VA examination by a different examiner with all of that evidence considered. An August 2012 rating decision granted service connection for a right knee disability and assigned a 10 percent rating. A June 2013 statement submitted by his attorney expressed disagreement with the rating assigned and an intent to appeal. Since the June 2013 statement meets the criteria to be considered a notice of disagreement, and a statement of the case has not been issued, the Board must remand that issue for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any VA treatment records that are not already of record. 2. Schedule the Veteran for a VA examination by the appropriate specialist medical doctor examiner who has not previously examined him. All indicated studies should be performed. The examiner must review the claims file and must note that review in the report. The rationale should be provided for all requested opinions. The examiner should provide the following: (a) Is the Veteran's familial polyposis a defect or a disease? A congenital abnormality that is subject to improvement or deterioration is considered a disease. A congenital abnormality that is more or less static in nature and not considered capable of improving or deteriorating is considered a defect. (b) If the Veteran's familial polyposis is a defect, was there any superimposed disease or injury in connection with the congenital defect? If so, is it at least as likely as not (50 percent or greater) that the identified superimposed disease or injury related to any period of active service? (c) If the familial polyposis is a disease, then is it at least as likely as not (50 percent or greater) that the familial polyposis was aggravated by any period of active service? Aggravation is a permanent worsening of the underlying condition Consideration of all of the evidence of record should be made, especially, the January 2006 VA examination, the May 2012 VA examination, the service medical records, and the findings of familial polyposis in his sisters and his paternal grandmother. 3. Issue a statement of the case on the issue of entitlement to an initial increased rating for a right knee disability. Notify the Veteran of his appeal rights. If the Veteran perfects a timely appeal, return the case to the Board. 4. Then readjudicate the claim. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board. The Veteran 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 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).