Citation Nr: 1336451 Decision Date: 11/08/13 Archive Date: 11/22/13 DOCKET NO. 10-15 258 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for a claimed bilateral lower leg and foot disorder, other than that due to the service-connected disability manifested by radiculopathy. 2. Entitlement to service connection for a disability claimed as Meniere's disease. 3. Entitlement to service connection for a disability manifested by vertigo. 4. Entitlement to service connection for hepatitis C. 5. Entitlement to service connection for diabetes type II, as secondary to hepatitis C. 6. Entitlement to an initial evaluation greater than 10 percent for the service connected hepatitis A. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD H.J. Baucom, Counsel INTRODUCTION The Veteran had active service from July 1969 to June 1976 and from December 1986 to April 1991. These matters come before the Board of Veterans' Appeals (Board) from multiple rating decisions of the RO. In June 2013, the Veteran testified at hearing from the RO via videoconference technology before the undersigned Veterans Law Judge; the transcript is of record. The Veteran contends that he has an unidentified condition involving his lower legs and feet that is separate and distinct from his service-connected left and right lower extremity radiculopathy. In order to comport with the Veteran's contentions and to help identify what, if any, additional disorder he has the issues of service connection for left foot/shin, right foot/shin, bilateral leg disorder and bilateral foot disorder have been combined into one issue. The Veteran's virtual VA file has been reviewed. The appeal is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND The Veteran was initially granted service connection for hepatitis and assigned a noncompensable evaluation in a June 2008 rating decision. The Veteran appealed the initial rating. During the appeal, an October 2012 rating decision increased the evaluation for the service-connected hepatitis to 10 percent. As this is not a full grant of the claim for increase, it remains on appeal and will be not be addressed pending completion of additional development. During the pendency of the appeal, a December 2012 rating decision denied service connection for hepatitis C. At the June 2013 hearing, the Veteran expressed his disagreement with this decision stating that he did have hepatitis C that is due to an episode of infection during service. As the Veteran's statements, now transcribed, constitute a valid Notice of Disagreement, a Statement of the Case to address this matter must be issued. The Board is required to remand for this action. See Manlicon v. West, 12 Vet. App. 238 (1999). Clearly, the developed issue of an increased rating for the service-connected hepatitis is closely related to the question involving hepatitis C as sequela of an infection incurred during service. Moreover, the Veteran asserts that he developed diabetes type II due to his hepatitis C. Accordingly, further action as to these two matters also must be deferred. The Veteran also asserts developing a lower leg and foot disorder due to service. He testified that his primary symptoms are aching pain in his feet and legs and that his feet were so sensitive that he could not walk at times. He also testified that he was awaiting a second study on his nerves to be scheduled with VA. Although the record was held open for 30 days after the hearing, no additional VA treatment records were added to the paper or electronic record. The Veteran is service connected for degenerative joint disease of the lumbar spine and for disability manifested by radiculopathy of each lower extremity. In a March 2012 telephone conversation, the Veteran clarified that he was claiming a separate leg and foot condition related to his nerves and not claiming an increased rating for the already service-connected radiculopathy. The Veteran has undergone VA and private treatment for these complaints, but the cause of his claimed symptoms remains unclear. Thus, additional development is needed. Further, if the Veteran's lower leg and foot condition is actually due to diabetic neuropathy, then the question of service connection would be closely related with the developed issue of service connection for diabetes type II. Finally, the issues of service connection for Meniere's disease and vertigo must be remanded so that VA examinations can be performed to address each. VA must provide an examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, the Veteran reports experiencing symptoms of ringing in his ears, fullness of ears, dizziness and vertigo that began service and have continued thereafter. The Veteran reports that, as a physician, he did not seek treatment for these manifestations because he knew that the conditions could not be treated. As there is insufficient evidence to determine whether the Veteran does suffer from Meniere's disease and vertigo or other related disease process that began during service, an examination is required to ascertain the nature and likely etiology of the claimed disease process. Accordingly, the case is REMANDED for the following action: 1. The RO should take all indicated action in order to obtain and associate with the claims file copies all outstanding VA treatment records referable to the claimed disorders. 2. The RO then should have the Veteran scheduled for a VA examination to determine the nature and likely etiology of the disability claimed as Meniere's disease and vertigo. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed. If the examiner or medical professional does not have access to Virtual VA, any relevant treatment records contained in 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 for review. After reviewing the entire record and examining the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not that the Veteran suffers from claimed Meniere's disease or vertigo that had its clinical onset during service or otherwise is due to an event or incident of his period of active service. 2. The RO also should have the Veteran scheduled for a VA examination to determine the nature and likely etiology of the claimed bilateral lower leg and foot disorder. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed. If the examiner or medical professional does not have access to Virtual VA, any relevant treatment records contained in 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 for review. After reviewing the entire record and examining the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not that the Veteran suffers from a claimed disability involving the lower leg and foot (other than that due to the service-connected radiculopathy) that had its clinical onset during service or otherwise is due to an event or incident of his period of active service. 3. The RO then should issue a Statement of the Case addressing the issue of service connection for hepatitis C to the Veteran and his representative and afford them a reasonable opportunity for response. 4. After completing all indicated development, the RO should readjudicate the claims remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the RO should furnish the Veteran and his representative a fully responsive Supplemental Statement of the Case and afford them a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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). _________________________________________________ STEPHEN L. WILKINS 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) (2013).