Citation Nr: 1327004 Decision Date: 08/23/13 Archive Date: 08/29/13 DOCKET NO. 09-21 960 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for nerve damage of the right wrist. 2. Entitlement to service connection for hepatitis C. 3. Entitlement to service connection for fungal disorder of the feet. 4. Entitlement to an increased rating for lumbar spondylosis, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The Veteran had active service from August 1971 to September 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board notes that, in addition to the paper claims file, there is a Virtual VA (VVA) electronic claims file. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are not relevant to the issues currently on appeal. 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 The law provides that the VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159. Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159. In this case, the Veteran was afforded a VA examination in November 2007 in connection with his claim for an increased evaluation for lumbar spondylosis. Thus, as pointed out by his representative in a July 2013 written brief presentation, it has been nearly six years since his last examination. VA's General Counsel has indicated that, when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Therefore, the Board finds that an additional VA examination is necessary for the purpose of ascertaining the current severity and manifestations of the Veteran's service-connected lumbar spondylosis. Similarly, the Veteran was afforded a VA examination in November 2007, which found that the Veteran had an old healed scar to the right wrist with no neurological deficits. However, as point out by his representative in July 2013, no electromyography testing or nerve conduction studies were performed. Therefore, the Board finds that an additional VA examination is necessary to determine the nature and etiology of any nerve damage to the right wrist that may be present. The Board also notes that the Veteran was provided a VA examination in November 2007 in connection with his claim for service connection for hepatitis C. The examiner opined that the disorder is less likely caused by the excessive use of needles. She also stated that hepatitis C is not caused by or a result of excessive treatment of medication that was administered by needles. The examiner observed that there was no evidence of a blood transfusion during or after service, that the Veteran denied intravenous drug use, and that there was no evidence of use of contaminated needles to provide medication. However, the examiner did not address the Veteran's contention that his hepatitis C was due to the unsanitary condition at medical treatment facilities in Germany. It would have also been helpful if she had discussed how hepatitis C generally presents, particularly in terms of how long it usually takes to detect the disorder or if it is possible to determine how long a Veteran may have had the disease. Therefore, the Board finds that an additional medical opinion would be helpful in this case. Moreover, the Board notes that the record does not contain any treatment records dated after August 2008. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, upon, any outstanding records should be obtained and associated with the file. Lastly, the Board notes that an August 2008 rating decision denied the Veteran's claim for service connection for a fungal disorder of the feet. In his May 2009 substantive appeal regarding the issues currently on appeal, the Veteran included argument pertaining to his foot condition. To date, however, the RO has not issued a statement of the case (SOC) in response to what can be liberally construed as the appellant's notice of disagreement (NOD). The filing of an NOD places a claim in appellate status. Therefore, the failure to issue an SOC in such a circumstance renders a claim procedurally defective and necessitates a remand. See 38 C.F.R. §§ 19.9, 20.200, 20.201; see also Manlincon v. West, 12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398 (1995); Archbold v. Brown, 9 Vet. App. 124 (1996). The purpose of the remand is to give the RO an opportunity to cure this defect. Thereafter, the RO should return the claims file to the Board only if the appellant perfects his appeal in a timely manner. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997); see also In re Fee Agreement of Cox, 10 Vet. App. 361, 374 (1997) (holding that if the claims file does not contain a notice of disagreement, a statement of the case and a VA Form 9 [substantive appeal], the Board is not required, and in fact, has no authority, to decide the claim). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should request that the appellant provide the names and addresses of any and all health care providers who have provided treatment for his nerve damage of the right wrist, hepatitis C, and lumbar spondylosis. After acquiring this information and obtaining any necessary authorization, the RO/AMC should obtain and associate these records with the claims file. The RO/AMC should obtain and associate with the claims file VA medical records pertaining to these disorders dated from August 2008 to the present. 2. The Veteran should be afforded a VA examination to ascertain the severity and manifestations of his service- connected lumbar spondylosis. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of the Veteran's service-connected spine disability. The examiner should report all signs and symptoms necessary for rating the Veteran's lumbar spine disability under the rating criteria. In particular, the examiner should provide the range of motion of the thoracolumbar spine in degrees and state whether there is any form of ankylosis. The examiner should also state the total duration of incapacitating episodes over the past 12 months and identify and describe all neurological manifestations of the service-connected spine disability other than radiculopathy. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. The Veteran should be afforded a VA examination to determine the nature and etiology of any nerve damage of the right wrist that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, to include electromyography testing and nerve conduction studies. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The Veteran has contended that a dog bite he sustained in service caused nerve damage to his right wrist. His service treatment records do show that he sought treatment in July 1972 after being bit in the right forearm in May 1972. He complained of numbness and tingling at that time, and in September 1972, he indicated that he had paresthesias of the right hand. However, a neurological examination was within normal limits in September 1972, and his September 1973 separation examination found his upper extremities to be normal. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. After all necessary testing, the examiner should identify any current nerve damage to the right arm. For each diagnosis identified, the examiner should state whether it is at least as likely as not that the current disorder is causally or etiologically related to the Veteran's military service, including his symptomatology therein. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. The RO/AMC should obtain an additional medical opinion to determine the nature and etiology of the Veteran's current hepatitis C. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The Veteran has contended that his current hepatitis C is related to injections administered for chronic back pain during his military service. He has also claimed that it may be related to the unsanitary conditions at military treatment facilities in Germany. He further asserted that his liver disorder could be due to the excessive use of medication in service. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should state whether it is at least as likely as not that the Veteran's current hepatitis C manifested in service or is causally or etiologically related to his military service, including any injections administered therein, the unsanitary conditions at military treatment facilities in Germany, and the excessive use of medication in service. In rendering this opinion, the examiner should identify any risk factors for hepatitis C that the Veteran may have had, such as blood transfusions, tattoos, body piercings, drug use, and unprotected sex. It would also be helpful if the examiner discussed how hepatitis C generally presents or develops, particularly in terms of how long it usually takes to detect and if it is possible to tell how long the Veteran had the disease when it was first diagnosed. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 5. The RO/AMC should issue a statement of the case addressing the issue of entitlement to service connection for a fungal disorder of the foot. The statement of the case should include a discussion of all relevant evidence considered and citation to all pertinent law and regulations. Thereafter, the appellant should be given an opportunity to perfect an appeal by submitting a timely substantive appeal in response thereto. The RO/AMC should advise the appellant that the claims file will not be returned to the Board for appellate consideration of this issue following the issuance of the statement of the case unless he perfects his appeal. 6. After completing these actions, the RO/AMC should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 7. When the development requested has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence. If the benefits currently on appeal are not granted, the appellant and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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 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). _________________________________________________ JESSICA J. WILLS 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).