Citation Nr: 1333352 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 06-27 432 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a chronic bilateral foot disability. 2. Entitlement to service connection for a chronic disability manifested by left-sided head pain. 3. Entitlement to service connection for a chronic right knee disability. 4. Entitlement to an initial evaluation in excess of 10 percent prior to April 29, 2004, and in excess of 20 percent since April 29, 2004, for a right shoulder injury with current metallic particles. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and A. M. ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran served on active duty from January 2003 to April 2004, including service in Southwest Asia from April 2003 to March 2004. These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. In October 2010, the Board remanded all of the issues then on appeal to the RO via the Appeals Management Center (AMC), in Washington, DC, for additional development. In a January 2013 decision, the Board then granted service connection for an undiagnosed illness manifested by chronic muscular chest pain, denied entitlement to service connection for chronic hearing loss disability and a chronic kidney disability, and granted a partial increase in the evaluation of posttraumatic stress disorder (PTSD). The Board also remanded the issues of entitlement to service connection for a chronic back disability, a bilateral foot disability, a disability manifested by left-sided head pain, and a right knee disability, and entitlement to an increased evaluation for a right shoulder disability, for compliance with the October 2010 remand and further development. In a May 2013 rating decision, the RO granted service connection for a back disability. Thus, that issue is no longer on appeal. Also in that rating decision, the RO increased the rating for the right shoulder disability to 20 percent effective April 29, 2004. As that increase does not represent the maximum rating available, the issue remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). The appeal is REMANDED to the RO via the AMC. VA will notify the Veteran if further action is required. REMAND In the remand portion of the January 2013 decision, the Board requested that any outstanding VA and private medical records be obtained and that the Veteran be afforded a VA examination to determine the nature and etiology of his claimed disabilities. The AMC obtained additional medical records from the San Juan VA Medical Center (VAMC) and asked the Veteran to complete an authorization form for any private health care provider who has treated him for his disabilities. The Veteran did not reply. Thus, there is no further duty to obtain any private medical records in compliance with the remand. See Dyment v. West, 13 Vet. App. 141 (1999). The AMC also afforded the Veteran VA examinations in February 2013. However, the Board finds the opinions to be incomplete with respect to the service-connection claims. With respect to a bilateral foot disability, the examiner stated that examination did not show any pathology related to the feet and thus did not provide an opinion on etiology. However, an earlier November 2010 VA examination report reflects a diagnosis of bilateral strain of the dorsal area of the foot and a later July 9, 2013, VA general medical examination report in the Veteran's Virtual VA file reflects diagnoses of bilateral adductus and pes planus. Thus, an addendum addressing the etiology of the above diagnosed disorders should be obtained. With respect to a disability manifested by left-sided head pain, the February 2013 VA examiner provided a diagnosis of tension headaches and opined that they are not related to service or the service-connected PTSD, muscular chest pain, or right shoulder disability. Although the examiner was asked to take into account the Veteran's report of in-service onset and continuing complaints thereafter, the examiner merely stated that there is no evidence of headaches in the service treatment records or the electronic VA medical records, other than a complaint of headaches on an October 2009 request for a CT of the head. The examiner also did not specifically provide an opinion as to whether the Veteran's headaches have been aggravated by his service-connected disabilities. Thus, an addendum addressing the Veteran's lay statements and the aggravation issue should be obtained, in compliance with the remand. Stegall v. West, 11 Vet. App. 268 (1998). In doing so, the examiner should consider the July 9, 2013, VA general medical examination report diagnosis of cluster headaches and a July 12, 2013, VA psychiatric examination report notation that headaches are frequently seen in persons with anxiety, both of which are in the Veteran's Virtual VA file. With respect to a right knee disability, although the February 2013 VA examiner was asked to consider the Veteran's report of in-service onset and continuing complaints thereafter, the examiner merely stated that there is no evidence of knee complaints in the service treatment records and a gap in treatment in the electronic VA medical records. Thus, an addendum addressing the Veteran's lay statements should be obtained, in compliance with the remand. See Stegall v. West, 11 Vet. App. 268 (1998). Prior to obtaining the addenda, any outstanding VA medical records should be obtained. The record, including the Veteran's Virtual VA file, contains treatment notes from the San Juan VAMC through May 2013. Thus, any treatment notes since that time should be obtained. With respect to the evaluation of the service-connected right shoulder disability, the record shows that there are outstanding Social Security Administration (SSA) records that may be relevant to the claim. Although the RO requested the Veteran's records from the SSA in January 2013, there is no indication that they have been obtained or are unavailable. The report of the July 9, 2013, VA general medical examination report shows that the Veteran is unable to maintain his normal work requirements because he cannot lift heavy object due to his right shoulder disability and the examination report of the July 12, 2013, VA psychiatric examination shows that the Veteran is receiving disability benefits from the SSA. Thus, the SSA records may be relevant to the evaluation of the right shoulder disability and a follow-up request should be made. Lastly, as noted above, records have been added to the Veteran's Virtual VA file. Thus, those records must be made available to the VA examiner and considered on remand. Accordingly, the case is REMANDED for the following actions: 1. In light of the statements regarding the Veteran's receipt of disability benefits from SSA, make a follow-up request for the Veteran's SSA records. 2. Obtain any records of treatment from the San Juan VAMC since May 2013. 3. Then, arrange for the Veteran's claims file, including the VA examination reports and the report of the Physical Evaluation Board in the Veteran's Virtual VA file, to be reviewed by the examiner who completed the February 2013 VA foot and knee examinations for an addendum that addresses the following. The examiner should render an opinion as to whether the Veteran's bilateral foot and right knee disabilities are at least as likely as not (a 50 percent or greater probability) etiologically related to active service or events therein. In providing the above-noted opinions, the examiner may not rely solely on the lack of any in-service or immediate post-service documentary evidence of relevant treatment or complaints, and must instead take into account the Veteran's report of in-service onset and continuing complaints thereafter. Specific to the feet, the examiner should also consider the earlier November 2010 VA examination report noting a diagnosis of bilateral strain of the dorsal area of the foot and later July 9, 2013, VA general medical examination report noting diagnoses of bilateral adductus and pes planus. The examiner should provide a complete rationale for any opinions expressed. If the examiner who completed the February 2013 VA foot and knee examinations is not available, have another appropriate examiner review the record and provide the requested opinions. 4. Also arrange for the Veteran's claims file, including the VA examination reports and the report of the Physical Evaluation Board in the Veteran's Virtual VA file, to be reviewed by the examiner who completed the February 2013 VA headaches examination for an addendum that addresses the following. The examiner should render opinions as to whether the Veteran's left-sided head pain is at least as likely as not (a 50 percent or greater probability): (1) etiologically related to active service or events therein; or (2) caused or permanently worsened beyond natural progression by the Veteran's service-connected PTSD, undiagnosed illness manifested by chronic muscular chest pain, and/or right shoulder disability. In providing the above-noted opinions, the examiner may not rely solely on the lack of any in-service or immediate post-service documentary evidence of relevant treatment or complaints, and must instead take into account the Veteran's report of in-service onset and continuing complaints thereafter. The examiner should also consider the July 9, 2013, VA general medical examination report showing a diagnosis of cluster headaches and the July 12, 2013, VA psychiatric examination report noting that headaches are frequently seen in persons with anxiety. The examiner should provide a complete rationale for any opinions expressed. If the examiner who completed the February 2013 VA headaches examination is not available, have another appropriate examiner review the record and provide the requested opinions. 5. After completing the above, readjudicate the claims, with consideration of all the evidence added to the record, including the Veteran's Virtual VA file, since the issuance of the May 2013 supplemental statement of the case (SSOC). If any benefit sought on appeal remains denied, the Veteran and his representative should be provided an SSOC and given an opportunity to respond. 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). ______________________________________________ Michael J. Skaltsounis Acting 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).