Citation Nr: 1325801	
Decision Date: 08/15/13    Archive Date: 08/26/13

DOCKET NO.  09-00 973	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1. Entitlement to an initial compensable rating for pseudofolliculitis barbae.  

2. Entitlement to an initial compensable rating for left foot pes planus.  

3. Entitlement to service connection for right foot pes planus.  

4.  Entitlement to service connection for a left wrist disability.  

5.  Entitlement to service connection for diabetes mellitus, type II.  

6. Entitlement to service connection for a lumbar spine disability.  

7. Entitlement to service connection for a bilateral shoulder disability.  

8. Entitlement to service connection for a right eye disability.  

9. Entitlement to service connection for bilateral hearing loss.  

10. Entitlement to service connection for tinnitus.  

11. Entitlement to service connection for a bilateral ankle disability.  

12. Entitlement to service connection for gastroenteritis.  

13. Entitlement to service connection for bilateral foot callosities.  

14. Entitlement to service connection for a groin rash.  


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Emily L. Tamlyn, Counsel


INTRODUCTION

The Veteran served on active duty from January 1966 to January 1968 and from October 1972 to July 1974.  

These matters come before the Board of Veterans' Appeals (Board) on appeal from several rating decisions of the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO).  In August 2008, the RO denied claims of service connection for right foot pes planus, a left wrist disability, diabetes mellitus, a lumbar spine disability, a bilateral shoulder disability, a right eye disability, bilateral hearing loss, and tinnitus.  In April 2010, the RO denied claims of service connection for a bilateral ankle disability, gastroenteritis, a bilateral foot condition, and a groin rash.  Also, the RO granted service connection for pseudofolliculitis barbae and assigned a noncompensable rating.  In March 2012, the RO granted the claim for service connection for left foot pes planus and assigned a noncompensable rating.  

The Veteran testified at a Board hearing in May 2013; the transcript is in the file and has been reviewed.  

The claims of service connection for disabilities of the left wrist, diabetes mellitus, the lumbar spine, the bilateral shoulders, the right eye, gastroenteritis, bilateral foot calluses and a groin rash are addressed in the REMAND portion of the decision below.  Also addressed are initial increased ratings for pseudofolliculitis barbae and left foot pes planus.  These claims are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  


FINDINGS OF FACT

1. Resolving doubt in favor of the Veteran, right foot pes planus is related to service.  

2. Resolving doubt in favor of the Veteran, bilateral hearing loss is related to service.  

3. Resolving doubt in favor of the Veteran, tinnitus is related to service.  

4. The weight of the evidence is against a finding that the Veteran has a bilateral ankle disability.  



CONCLUSIONS OF LAW

1. The criteria for a grant of service connection for right foot pes planus have been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154(b), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012).  

2. The criteria for a grant of service connection for bilateral hearing loss have been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1153, 1154(a), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2012).  

3. The criteria for a grant of service connection for tinnitus have been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154(a), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012).  

4. A bilateral ankle disability was not incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VCAA

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  

Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.  

VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by re-adjudication of the claim.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).  

In this decision, the Board grants entitlement to service connection for right foot pes planus, bilateral hearing loss and tinnitus.  As this represents a complete grant of the benefits sought on appeal, no discussion of VA's duty to notify and assist pursuant to the Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002), is necessary with respect to these claims.  

With respect to the claims of service connection for a left wrist and bilateral ankle disability, the Veteran was sent letters in October 2007 and December 2009 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal.  The letter also explained what type of information and evidence was needed to establish a disability rating and effective date.  Accordingly, no further development is required with respect to the duty to notify.  

Next, VA has a duty to assist the Veteran in the development of the claims.  This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The claims file contains the Veteran's service treatment records, as well as the relevant post-service reports of VA and private treatment and examination.  The Board has carefully reviewed such documents and concludes that no available outstanding evidence has been identified.  The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims.  

Additionally, statements in support of the claim are of record, including testimony provided at a May 2013 Board hearing before the undersigned.  At the hearing, the Veteran initially stated that he had an ankle disability since service and that he wore braces provided by VA since service.  (Transcript, p 26.)  However, he went on to state that the first time he received treatment for ankle disability from VA was 2008 and that prior to that time he was treating himself.  (Transcript, pp 26-27.)  These statements appear to contradict each other.  In any event, the evidence of record supports that the Veteran was first diagnosed with an ankle problem in 2008 when he fractured his left ankle, an injury that he currently has no residuals from according to the March 2010 VA examination.  As a result, the Board finds there is no reason to remand this claim for further records.  

Further regarding the duty to assist, the Court has held that the provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam).  Here, the transcript of the May 2013 Board hearing shows that the Veteran gave information regarding his claim for service connection for a bilateral ankle disability and responded to questions aimed at determining whether further information was needed to substantiate the claim.  Neither the Veteran nor his representative has raised complaints regarding the conduct of the hearing.  The Board finds the duties to notify and to assist have been met.  

For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Service Connection 

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303(a) (2012).  

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); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.  

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease; such diseases are listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Tinnitus and general orthopedic disabilities are not listed.  In Walker, the Federal Circuit specifically held that § 3.303(b) did not apply to a claim based on age related hearing loss.  

VA has taken an informal position that sensorineural hearing loss is an organic disease of the central nervous system and is a chronic disease.  See Memorandum from Under Sec'y for Health to Under Sec'y for Benefits, Characterization of High Frequency Sensorineural Hearing Loss (Oct. 4, 1995) (on file with VA).  The Veteran's hearing loss here has been diagnosed as sensorineural and the Board finds it qualifies as a chronic disease; thus, the continuity of symptoms must be considered for the claim of service connection for bilateral hearing loss.  

In adjudicating the claims, the Board must assess the competence and credibility of the Veteran.  Washington v. Nicholson, 19 Vet. App. 362 (2005).  Under 38 C.F.R. § 3.159(a)(2) (2012), 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 the facts or circumstances and conveys matters that can be observed and described by a lay person.  Id.  

In Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), the Federal Circuit reiterated that under 38 U.S.C.A. § 1154(a) VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for benefits.  Citing Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) and Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit stated that under § 1154(a) lay evidence can be competent and sufficient to establish a diagnosis of a condition when: "(1) a layperson is competent to identify the medical condition, (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, 492 F.3d at 1377.  

The Board must also assess the credibility, and probative value of the evidence of record as a whole.  In determining whether documents submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza, 7 Vet. App. 498.  

Right Foot Pes Planus

The Board finds that service connection for right foot pes planus is warranted.  The December 1965 report of medical examination (RME) noted right foot pes planus upon entrance.  Such notation triggers the application of the presumption of aggravation.  See Gilbert v. Shinseki, 26 Vet. App. 49 (2012).  

If a preexisting disorder is noted upon entry into service, a veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder.  38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2012).  See also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004).  In that case § 1153 applies and the burden falls on the veteran to establish aggravation.  See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994).  If the presumption of aggravation under § 1153 arises, the burden shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease."  38 U.S.C. § 1153; see also 38 C.F.R. § 3.306; Jensen, 19 F.3d at 1417; Wagner, 370 F. 3d at 1096.  

The Veteran was afforded two VA examinations, one in February 2008 and another in December 2011, reflecting a diagnosis of bilateral pes planus.  Neither report contains a finding that the pes planus was aggravated by service.  

Despite the above, the Board finds that an award of service connection is warranted here.  Indeed, in reviewing the evidence, the Board finds that the presumption of aggravation was not rebutted here.  Many service treatment records note symptomatic bilateral pes planus (see records from: August 1966; March, July, and November 1967; October 1973; January, February and June 1974) that tend to show an increase in disability.  Neither examiner applied the correct standard in proffering an opinion on this issue; that is, the "clear and unmistakable evidence" standard.  The December 2011 examiner did not address the right foot at all.  As a result, the Board finds the presumption is not rebutted and will grant service connection for pes planus of the right foot.  

Bilateral Hearing Loss

For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385 (2012).  

Generally, as an organic disease of the nervous system, service connection for sensorineural hearing loss may also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2012).  

The Board finds service connection for bilateral hearing loss is warranted.  One DD 214 shows that the Veteran was an aircraft mechanic in service and the other one indicates he was a missile crewman, supporting that he was exposed to acoustic trauma in service.  See 38 U.S.C.A. § 1154(a) (West 2002).  

Upon enlistment in December 1965, hearing acuity was as follows (American Standards Association (ASA) units are converted to International Standards Organization (ISO) units): 



HERTZ

500
1000
2000
3000
4000
RIGHT
5
0
5
25
45
LEFT
10
5
0
5
30

Thus, some clinical hearing loss was shown on entry. Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  This entitles the Veteran to the presumption of aggravation. 

At the separation examination in November 1967, the Veteran had hearing impairment for VA purposes in the right ear only (30 decibels at 4000 Hertz).  Upon enlistment in August 1972, the audiogram showed the Veteran had 55 decibels in the right ear and 40 in the left at 4000 Hertz.  The RME stated: "Ok audio" and he received a hearing profile of "2."  An August 1973 audiogram showed hearing loss for VA purposes in the both ears at 4000 Hertz.  

The June 1974 audiogram at separation was as follows: 




HERTZ

500
1000
2000
3000
4000
RIGHT
10
10
5
15
65
LEFT
10
0
0
5
50

Post-service, a February 2008 VA examination report shows a current diagnosis of mild to moderate sensorineural hearing loss for both ears that satisfies § 3.385.  Unfortunately, the VA examination is inadequate because in addition to not acknowledging the conversion of ASA to ISO units, the examiner appeared to have not realized the Veteran had a second period of service (see February 2008 VA examination report).  Also, the correct "clear and unmistakable evidence" standard for aggravation cases was not used.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; see also Wagner, 370 F.3d at 1096.  Thus, the opinion offered at that time is not deemed probative.

Again, a hearing loss defect, by clinical standards, was noted on entry into service.  Moreover, the evidence shows some increase in severity of the Veteran's hearing loss.  Under the circumstances, the Board again finds that the presumption of aggravation was not rebutted and service connection for bilateral hearing loss is granted.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  

Tinnitus

Regarding the claim of service connection for tinnitus, the Board again notes the February 2008 examiner did not acknowledge the Veteran had a second period of service (see February 2008 VA examination report).  This report is assigned no weight.  The Board finds the Veteran to be competent under 38 C.F.R. § 3.159(a)(2) to state that he has had ringing in his ears since he was exposed to acoustic trauma as an aircraft mechanic in service.  See Jandreau, 492 F.3d at 1377.  The Board also finds the Veteran credible regarding his assertion.  Caluza, 7 Vet. App. 498.  Indeed, his statements are not contradictory, are not refuted elsewhere in the record, and are consistent with the nature of his in-service duties.  The elements of service connection have been met and the claim is granted.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  

Bilateral Ankle Disability

The Board does not find service connection is warranted for a bilateral ankle disability because no current disability has been shown.  

The December 1965 entrance RME showed the lower extremities were normal and in the report of medical history (RMH) the Veteran denied having a bone, joint or other deformity.  In September 1967, a service treatment record showed the Veteran suffered mild sprain, no swelling and minimal tenderness.  In November 1967, the RME again showed the lower extremities were normal, but the RMH showed the physician's summary stated the Veteran had occasional swollen ankles after playing sports.  The Veteran re-enlisted in August 1972.  The RME showed a clinical evaluation of the lower extremities was normal.  The June 1974 (separation) RME showed the same.  The RMH reflects swollen or painful joints; the physician's summary went on to comment on the right hip and knees.  

A February 2008 VA examination report shows the feet and ankles were symmetrical and gait was normal.  There was no evidence of ankle pain.  Ankle range of motion was normal.  X-rays of both feet showed a calcaneal spur.  

In July 2008, a VA primary care note showed that the Veteran presented in a wheelchair with complaints of falling the night before and hurting his knees and left ankle.  It was noted that he had been on medication for his knees only.  The left ankle appeared swollen and was tender to touch.  An X-ray revealed an acute spiral fracture of the left malleous.  

In August 2008, VA orthopedic record showed a follow up assessment of a fracture of the left ankle.  A September 2008 VA orthopedic record (erroneously referring to the right ankle) noted the fracture from July 2008 and stated it was healing well, as did later treatment notes.  

In November 2009, the Veteran filed his claim referencing his November 1967 separation examination and September 1967 service treatment record, despite the fact that records from his later period of service showed no complaints, diagnoses or treatment regarding the ankles.  At the June 2013 Board hearing, the Veteran stated that his left foot/ankle would swell and it still hurt.  (Transcript, p 9.)  He asserted that in service his ankles used to swell up after a flag football game.  (Transcript, p 25.)  Although he initially stated he wore ankle braces since he got out of service, he also stated that the first time he was treated for this problem after service was in 2008.  (Transcript, p 26.)  He was reportedly told that he had bursitis of the ankles.  (Transcript, p 29.)  

At the time of his March 2010 VA examination, the Veteran did not recall the onset of an ankle condition.  He stated that he had arthritis in his other joints and would get cramps in his ankles.  His only symptom was pain.  His gait was noted to be normal.  Ankle findings were normal, as was range of motion.  No bilateral ankle disability was found and there was no diagnosis.  As a result, no bilateral ankle disability could be found to be related to service.  

As stated, the Board finds the first element of Shedden, 381 F.3d at 1167, that there is a current disability, has not been met.  McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) is often cited for the proposition that the requirement of current disability for service connection is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim, even if the disability resolves prior to VA's adjudication of the claim.  See also Romanowsky v. Shinseki, No. 11-3272 (Vet. App. July 10, 2013).  However, the issue in that case was a psychiatric disability and it involved whether or not that claimant had a personality disorder.  As explained in Jandreau, 492 F.3d 1377, note 4, orthopedic disabilities may be readily observable and diagnosed with the assistance of diagnostic tests.  Psychiatric disabilities are not subject to the same kind of testing and are often not readily observable.  

In contrast to McClain, this case involves an orthopedic disability, which was specifically not found shortly before the claim was filed and became obviously manifest due to the Veteran breaking his ankle in July 2008.  The VA records clearly show intervening injury between separation from service in 1974 and the claim in 2009.  Still, upon examination in March 2010, no currently disability was found and there were no residuals of the 2008 intervening injury.  

The Board finds the Veteran is competent, under 38 C.F.R. § 3.159(a)(2), to state that he had problems with his ankle in service and the service treatment records from the first period do note mild swelling of one ankle and bilateral swelling upon separation.  

Regarding credibility, the second period of service does not show complaints, diagnoses or treatment for the ankles and the separation examination shows the lower extremities were normal, save for the knee and hip joints, which were specifically noted.  This second separation examination, in combination with the February 2008 VA examination report, conflicts with the Veteran's assertion of having a bilateral ankle problem since service.  Further, when he broke his left ankle in 2008, no prior problems were reported.  Finally, when queried about his ankles at the VA examination in 2010, he did not remember when his ankle problem started.  The Board does not find the Veteran credible in his report of an ankle disability since service.  Caluza, 7 Vet. App. 498.  

The Board finds the March 2010 VA examination report to be the most probative evidence in the file.  No ankle disability was found upon examination.  Service connection for a bilateral ankle disability is denied.  

ORDER

Service connection for right foot pes planus is granted.  

Service connection for bilateral hearing loss is granted.  

Service connection for tinnitus is granted.  

Service connection for a bilateral ankle disability is denied.  



REMAND

The remaining issues on appeal require additional development.  Regarding the left wrist, the Veteran was afforded a VA examination in December 2011.  While an opinion of etiology was offered, it was based on an inaccurate assessment of the evidence.  Specifically, the examiner found that the left wrist disability clearly and unmistakably preexisted service.  The Board disagrees with this finding.  Indeed, the December 1965 RME associated with the Veteran's initial period of service showed that the upper extremities were clinically normal.  The report of medical history (RMH) showed the Veteran complained of swollen or painful joints but no bone, joint or other deformity.  In November 1967, the RME again showed the upper extremities were normal and the RMH showed he denied joint deformities.  

With respect to his second period of service, the August 1972 RME showed a clinical evaluation of the upper extremities was normal.  On the RMH, the Veteran reported a past broken bone.  The doctor's summary stated that he fractured his left wrist eight or nine years ago but it healed.  At separation, the RME again showed the upper extremities were normal and in the notes, he stated that he sustained a simple fracture of the left wrist in 1963 but had no complications or sequelae.  

As the objective examinations upon entrance to both periods of active service were normal, the Board finds there was no defect noted and finds the Veteran to be in sound condition.  The reference to a remote injury is noted, but it was indicated that such injury had healed.  38 U.S.C.A. § 1111.  As such, the examiner should have considered whether a left wrist disability was incurred in, rather than aggravated by, active service.  A remand is thus required on this issue.

Regarding the increased rating claim, at the May 2013 Board hearing, the Veteran stated his service-connected pseudofolliculitis barbae was not getting better and that he had recently received treatment three months prior (Transcript, pp 5-6).  Also at the hearing, the Veteran asserted he had been treated at VA since the 1993 (Transcript, pp 22, 28, 33).  The Board finds that a remand is warranted for potentially outstanding and pertinent VA records.  

Service personnel records should be requested to determine herbicide exposure.  

Further, although the March 2010 VA examiner did not find current disabilities of bilateral foot calluses and a groin rash, other recent VA treatment records show such current disabilities.  A follow up opinion is needed for these claims.  

Finally, in June 2012 the Veteran filed a notice of disagreement as to the noncompensable rating the RO assigned him after granting service connection for pes planus of the left foot in March 2012.  The Board must remand this matter for issuance of a statement of the case (SOC).  Manlincon v. West, 12 Vet. App. 238 (1999).  

Accordingly, the case is REMANDED for the following action: 

1. First, request all VA records for the Veteran in the file prior to 2005 and after October 2012.  Associate the records with the file.  If unavailable, notify the Veteran in accordance with 38 C.F.R. § 3.159(e) (2012).  

2. Request service personnel records for the Veteran and associate them with the file.  

3.  Return the file to the December 2011 VA examiner, or send the file to a new examiner if necessary, to determine the etiology of a left wrist disorder.  The examiner is instructed to find that any remote injury prior to service had resolved.  Thus, the question for consideration is whether it is at least as likely as not that a current left wrist disability was incurred in or the result of either period of active service.  Any opinions should be accompanied by a clear rationale.  If the examiner cannot respond without resorting to speculation, he or she should explain why a response would be speculative.  
If another physical examination is deemed necessary to respond to this inquiry, then one should be arranged.

4. Return the file to the March 2010 VA examiner, or send the file to a new examiner if necessary, to determine the etiology of the currently diagnosed skin disability of the groin, as well as bilateral foot calluses.  The examiner should state if it is at least as likely as not that these disabilities are related to service and support the opinion with reasons as well as citation to correct facts.  

For the groin skin disability, the examiner should reference the: 
* November 1973 and March 1974 service treatment records showing an infected sebaceous cyst in the groin and probable tinea in the groin; 
* June 1974 RME showing skin was normal and the RMH showing he denied skin diseases; 
* December 2008 VA record showing the Veteran requested a refill for miconazole nitrate cream to be applied for a groin rash; 
* November 2010 VA record showing a complaint of a rash in the groin area since "since 1960;" and 
* a March 2011 VA dermatology consultation noting lichen simplex chronicus.  

For the foot calluses, the examiner should reference: 
* August 1967 and January 1968 service treatment record noting calluses; 
* June 2008 and September 2009 VA podiatry records showing hyperkeratotic lesions of the bilateral feet; 
* November 2010 VA podiatry record showing no calluses and the Veteran's assertions; 
* A February 2011 diabetic foot examination showing calluses; and 
* the March 2010 and December 2011 VA examinations showing no calluses.  

4. Issue a statement of the case regarding the matter of entitlement to an initial compensable rating for left foot pes planus.  If, and only if, the appellant timely perfects an appeal, this claim should be returned to the Board.  

5. Readjudicate the claims.  If the decision is in any way unfavorable, provide a supplemental statement of the case (SSOC) to the Veteran and his representative.  The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include the applicable law and regulations considered pertinent to the issue remaining on appeal.  An appropriate period of time should be allowed for response.  

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).  

						(CONTINUED ON NEXT PAGE)



This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board 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).  




______________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs