Citation Nr: 1331174 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 10-14 608 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for migraine headaches. 2. Entitlement to service connection for a low back disability. 3. Entitlement to service connection for residuals of a plantar wart. 4. Entitlement to service connection for gastroesophageal reflux disease (GERD). 5. Entitlement to service connection for hypertension. 6. Entitlement to service connection for a myocardial infarction, to include as secondary to hypertension. 7. Entitlement to a disability rating in excess of 10 percent for varicose veins of the left lower extremity. 8. Entitlement to a disability rating in excess of 10 percent for varicose veins of the right lower extremity. 9. Entitlement to a compensable (in excess of 0 percent) disability rating for acne. 10. Entitlement to a compensable disability rating for a scar of the left breast. REPRESENTATION Appellant represented by: Kenneth LaVan, Attorney ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1994 to April 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a April 2009 and February 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board notes that a May 2010 rating decision reflects that a total disability rating based on individual unemployability (TDIU) was denied by the agency of original jurisdiction (AOJ). See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009) (noting in a footnote that ratings and TDIU claims may be separately adjudicated). To date, the Veteran has not challenged that determination. As such, the Board does not have jurisdiction over the issue. See Locklear v. Shinseki, 24Vet. App. 311, 315 (2011). The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Veteran experienced low back pain during service in 1995 and 1996. The Veteran was afforded a VA examination in August 2008 to determine whether he had a current low back disability related to service. The examiner found no objective findings of low back strain and no bony pathology. Since that examination, however, the record shows private treatment records dated July 2005 documenting degenerative disc disease L1-L2 with slight anterior subluxation of L3-L4. Additionally, the examiner did not provide a medical opinion. Rather, he stated that although the onset of his low back pain during service, he was involved in a motor vehicle accident in 2002 wherein he also reported a back injury and was followed by a chiropractor. The examiner notes pain in service, but did not opine as to whether the Veteran's low back disability is related, at least in part, to service. As such, the Board finds that a new examination and medical opinion is necessary. Service treatment records show that the Veteran was treated for a plantar wart in 1996. The August 2008 VA examiner noted no current diagnosis of plantar wart. Since that time, the Veteran has asserted that his current disability is not an actual plantar wart, which was removed during service, but a resulting scar or feeling that he is walking on a pebble. He asserts that his gait has become antalgic due to residuals of a plantar wart. As the examiner did not address whether any such residuals exist, a new VA examination is requested to determine the existence of any residuals. The August 2008 VA examiner diagnosed hypertension, but he did not address the Veteran's noted elevated blood pressure readings during service, or immediately after service. Additionally, the examiner did not provide a medical nexus opinion regarding hypertension. Once the Secretary determines that an examination or opinion is required to decide a claim, VA is required to ensure that such an examination or opinion is adequate; if it is not "it is incumbent upon the rating board to return the report as inadequate for evaluation purposes." 38 C.F.R. § 4.2; Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007) (stating that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"); see also Hicks v. Brown, 8 Vet.App. 417, 422 (1995) (concluding that inadequate medical evaluation frustrates judicial review). As there is evidence of elevated blood pressures during service and a current diagnosis of hypertension, a medical nexus opinion is required. The issue of service connection for a myocardial infarction is claimed as secondary to the Veteran's hypertension. The May 2008 VA examiner noted that he had a myocardial infarction in 2000. The Board finds that the two issues are inextricably intertwined and entitlement to service connection for a myocardial infarction must be remanded until development of the issue regarding hypertension is resolved. The Veteran claims that he currently suffers migraine headaches that began during service. The VA examiner in August 2008 noted that the Veteran's service treatment records showed one complaint of a headache. The Board notes, however, a May 1996 treatment record that shows a three week history of headaches. The examiner specifically noted that the Veteran began having headaches, specifically noting multiple ones that cause pain of the temporal lobes. As the examiner's opinion is based, in part, on an inaccurate factual background, the Board finds that a new VA examination is necessary to determine the etiology and onset of his headache disorder. The Veteran reported complaints of gastrointestinal distress during service. He treated these problems with over-the-counter antacids. The VA examiner diagnosed dyspepsia and associated GERD with the diagnosis. The examiner did not, however, provide a nexus opinion regarding his gastrointestinal claim. Again, the Board notes that once the Secretary determines that an examination or opinion is required to decide a claim, VA is required to ensure that such an examination or opinion is adequate; if it is not "it is incumbent upon the rating board to return the report as inadequate for evaluation purposes." 38 C.F.R. § 4.2; Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Therefore a new examination is required. Regarding the increased rating claims for varicose veins, acne, and scar of the left breast, the Veteran's representative has asserted that the Veteran's current VA examination was inadequate, that a new examination is necessary to determine the current severity of the disabilities, and that the Veteran's disabilities have worsened since the August 2008 VA examination that was provided over five years prior to the present time. As such, VA is required to afford him a contemporaneous VA examination to assess the current nature, extent and severity of his left shoulder disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Thus, the Board has no discretion and must remand this claim. Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service symptoms for the disabilities for which he is seeking service connection as well as the nature, extent and severity service-connected disabilities for which he is seeking higher ratings, to include the impact of the conditions on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. VA should attempt to obtain and associate with the claims file any outstanding treatment records. All attempts to obtain these records should be documented. 3. After associating all pertinent outstanding records with the claims file, schedule the Veteran for a VA examination or multiple examinations if one examiner is not qualified to address all the issues. The examiner should review the claims file and address the following questions: a.) Is it at least as likely as not that the Veteran's low back disability had its onset during or was causally related to service? The examiner should address the Veteran's complaints during service and his post-service motor vehicle accidents as well as his lay account as to the onset of his back symptoms. b.) Are there any residuals of the Veteran's plantar wart, such as scarring or altered gait? The examiner should address the Veteran's lay assertions. c.) Is it at least as likely as not that the disease process resulting in the Veteran's hypertension had its onset during. The examiner must also opine as to whether it is at least as likely as not that the disability is otherwise related to or developed within a year of the Veteran's separation from service. In responding to these inquiries, the examiner must address the Veteran's complaints and readings of elevated blood pressure during service and shortly after separation from service. If the Veteran's hypertension had its onset during service, the examiner should determine whether it is at least as likely as not that the Veteran's myocardial infarction is causally or etiologically related to the Veteran's hypertension. The examiner must also state whether it is at least as likely as not that the Veteran's heart disease had its onset in service or within one year of his discharge from active duty. d.) Is it at least as likely as not that the Veteran's headache disability had its onset during or was causally related to service? The examiner should address the Veteran's complaints and finding of a history of headaches and three weeks of headaches noted in May 1996. In responding to this inquiry, the examiner must acknowledge and discuss the Veteran's competent lay account as to the onset of his headache disorder. e.) Is it at least as likely as not that the Veteran's GERD or dyspepsia had its onset during or was causally related to service? The examiner should address the Veteran's complaints and lay statements regarding over-the-counter treatment during service. f.) Determine the nature, extent, and severity of the Veteran's service-connected bilateral varicose veins. g.) Determine the nature, extent, and severity of the Veteran's service-connected acne. h.) Determine the nature, extent, and severity of the Veteran's service-connected scar of the left breast. All findings and conclusions should be set forth in a legible report. Please ensure all responses conform to the criteria set forth in the rating schedule. 4. Then, readjudicate the appeal. If the benefits sought on appeal are not granted, issue the Veteran and his representative a supplemental statement of the case and provide the Veteran an opportunity to respond. 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). _________________________________________________ STEVEN D. REISS 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).