Citation Nr: 1333754 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 09-41 999 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for a bilateral shoulder disability, to include as secondary to service-connected disabilities. 4. Entitlement to service connection for a lumbar spine disability, to include as secondary to service-connected disabilities. 5. Entitlement to service connection for a bilateral hip disability, to include as secondary to service-connected disabilities. 6. Entitlement to service connection for a bilateral knee disability, to include as secondary to service-connected disabilities. 7. Entitlement to service connection for a bilateral ankle disability, to include as secondary to service-connected disabilities. 8. Entitlement to an evaluation in excess of 20 percent for post-operative residuals of the left fourth metatarsal with multiple callosities to include arthritis with history of hallux valgus deformity and hammer toes. 9. Entitlement to an evaluation in excess of 20 percent for post-operative residuals of the right fourth metatarsal with multiple callosities to include arthritis with history of hallux valgus deformity and hammer toes. ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION The Veteran had active military service from March 1971 to January 1978. This case comes before the Board of Veterans' Appeals (Board) on appeal of a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. 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 Veteran has claimed service connection for a number of disabilities both as directly related to active service or, in the alternative, as secondary to service-connected foot disabilities. Initially, the Board observes the earliest VA treatment records that have been associated with the claims file are dated in January 2002. These records, which discuss his claimed hypertension and diabetes mellitus, show the Veteran was an established patient and being seen for a follow-up visit, clearly indicating prior VA treatment with respect to these disabilities. Further, after the Veteran filed his current claim, a March 2009 VA Problem List record includes a handwritten note that new VA records exist at multiple locations. While some VA treatment records were subsequently associated with the claims file, it is unclear whether all records generated since October 2006 have been associated with the claims file. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive 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). Because the Board has identified outstanding records specifically addressing issues on appeal, namely hypertension and diabetes mellitus, a remand is necessary to allow outstanding VA treatment records to be obtained and associated with the claims file. With regard to the service connection claims for disabilities of the lumbar spine and bilateral shoulders, hips, knees and ankles, the Veteran's former representative raised the issue of secondary service connection for the first time in a January 2010 statement. To date, the Veteran has not been provided proper notice regarding the evidence necessary to establish a service connection claim on a secondary basis, and the secondary service connection claims have not been adjudicated by the Agency of Original Jurisdiction (AOJ) in the first instance. Further, on remand, the Veteran should be provided a VA examination to determine whether the Veteran's claimed orthopedic disabilities are etiologically related to his period of active service or are otherwise proximately due to or aggravated by his service-connected bilateral foot disabilities. See generally 38 C.F.R. §§ 3.159(c), 3.303, 3.310 (2012); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Finally, a review of the virtual claims file indicates the Veteran was provided a VA examination to address his service-connected bilateral foot disabilities in May 2013. This examination was provided after the issuance of the October 2009 statement of the case and has not been considered by the AOJ in conjunction with the instant claims. The Board may not consider in the first instance evidence pertinent to the Veteran's claims on appeal absent a written waiver of AOJ jurisdiction from the Veteran. See 38 C.F.R. § 20.1304(c) (2012). As such a waiver has not been received, the increased rating claims must be remanded to allow the AOJ to consider this new evidence and readjudicate the Veteran's claims. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) that includes an explanation as to the information or evidence needed to establish service connection for disabilities of the bilateral shoulders, lumbar spine, bilateral hips, bilateral knees and bilateral ankles on a secondary basis. 2. Obtain and associate with the claims file all outstanding VA treatment records. Specifically, records generated by VA facilities prior to January 2002 and from October 2006 to the present must be obtained. Efforts to obtain these records must be associated with the claims file and requests for these records must continue until the AOJ determines that the records sought do not exist or that further efforts to obtain those records would be futile. 3. Following the above, schedule the Veteran for a VA examination to address the nature and etiology of any disabilities of the bilateral shoulders, lumbar spine, bilateral hips, bilateral knees and bilateral ankles. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI (Compensation and Pension Records Interchange), and AMIE (Automated Medical Information Exchange)) must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. Any testing deemed necessary, should be performed. All pertinent pathology should be noted in the examination report. The examiner is requested to address the following: a. Identify any current disability of the bilateral shoulders, lumbar spine, bilateral hips, bilateral knees and/or bilateral ankles, providing a clinical diagnosis for each condition identified. b. For each disability identified above, opine whether it is at least as likely as not (probability of at least 50 percent) that such disability is etiologically related to the Veteran's period of active service. c. If (b) is answered no, opine whether it is at least as likely as not (probability of at least 50 percent) that such disability is proximately due to (caused by) the Veteran's service-connected bilateral foot disability, diagnosed as post operative fourth metatarsal of both feet with multiple callosities to include arthritis with hallux valgus deformity and hammer toes. d. If (c) is answered no, opine whether it is at least as likely as not (probability of at least 50 percent) that such disability has been aggravated (chronically worsened beyond normal progression) by the Veteran's service-connected bilateral foot disability, diagnosed as post operative fourth metatarsal of both feet with multiple callosities to include arthritis with hallux valgus deformity and hammer toes. If the examiner concludes that the Veteran's service-connected disabilities aggravated any or all of the disability(ies) at issue, the examiner must further specify, to the extent possible, the degree of additional disability (pathology/impairment) that resulted from such aggravation, identifying the "baseline" severity of such disability prior to any aggravation and the level of severity existing after the aggravation occurred. A full and detailed rationale must be provided for each opinion offered. 4. After completing the above, and any other development deemed necessary, readjudicate the Veteran's claims, including on the basis of secondary service connection where applicable, based on the entirety of the evidence, including newly obtained evidence associated with the virtual claims file. If the benefits sought on appeal are not granted to the appellant's satisfaction, he and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). _________________________________________________ K. PARAKKAL 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).