Citation Nr: 1340206 Decision Date: 12/05/13 Archive Date: 12/20/13 DOCKET NO. 07-33 789 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for hemorrhoids, claimed as gangrene. 2. Entitlement to service connection for heel spurs. 3. Entitlement to service connection for Zenker's diverticulum, claimed as secondary to hemorrhoids. 4. Entitlement to service connection for blood clot, also claimed as deep vein thrombosis (DVT), to include as secondary to hemorrhoids. 5. Entitlement to service connection for cellulitis, claimed as secondary to Zenker's diverticulum and blood clot. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran served on active duty from October 1989 to October 1991. This appeal to the Board of Veterans' Appeals (Board) arose from a March 2007 rating decision in which the RO denied service connection for hemorrhoids, heel spurs, Zenker's diverticulum, blood clot, and cellulitis. In May 2007, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in September 2007, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in October 2007. In January 2012, the Board remanded the Veteran's claims to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action, to include additional development of the evidence. After completing the requested development, the RO/AMC continued to deny the claims (as reflected in an October 2012 supplemental SOC (SSOC)) and returned the matters on appeal to the Board for further consideration. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) folder associated with the appellant's claims. However, a review of documents in such folder reveals that, with the exception of a September 2013 brief submitted by the Veteran's representative and additional VA treatment records dated to July 2012, they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. For the reasons expressed below, the matters on appeal are, again, being remanded to the RO, via the AMC. VA will notify the Veteran when further action, on his part, is required. As a final preliminary matter, the Board again notes, as noted in prior remand, that the Veteran's representative has raised the issues of entitlement to compensation benefits, pursuant to the provisions of 38 U.S.C.A. § 1151, for blood clot and cellulitis, as a result of VA medical treatment. It does not appear that these claims have yet been addressed by the RO. As such, these matters are not properly before the Board, and are thus again referred to the RO for appropriate action. REMAND Unfortunately the Board finds that further RO action on the claims on appeal is warranted, even though such will, regrettably, further delay an appellate decision on these matters. Initially, the Board observes that the RO last adjudicated the claim in the October 2012 SSOC. As noted above, VA treatment record had been associated with the Veteran's Virtual VA electronic record from the Charleston VAMC dated from March 2010 to July 2012. However, it does not appear that these records were considered by the RO in the SSOC. Moreover, subsequent to the issuance of the SSOC, additional VA treatment records were submitted by the Asheville, North Carolina VAMC. While the Veteran signed a general waiver of additional evidence in October 2012, this waiver clearly only applied to additional evidence later submitted by the Veteran and his representative, not evidence subsequently submitted by a VAMC. The appellate scheme set forth in 38 U.S.C.A. § 7104(a) (West 2002) contemplates that all evidence will first be reviewed at the RO so as not to deprive the claimant of an opportunity to prevail with his claim at that level. See generally Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Accordingly, the appeal must be returned to the RO for consideration of the additionally received evidence, and for issuance a supplemental SOC reflecting such consideration. However, prior to reconsidering the Veteran's claims, the Board finds that further development action in connection with these claims is warranted.\ As pointed out in the September 2013 brief submitted by the Veteran's representative, the October 2012 SSOC also indicated that the Veteran was scheduled for a VA examination with respect to the disabilities per the Board's prior remand. However, the Board did not direct the RO to schedule a VA examination at that time and no such examination reports have been associated with the claims file and it is unclear whether such examinations were actually scheduled. Thus, on remand, the RO should ensure that any examination reports not of record are associated with the record and if no such reports exist, provide a clear explanation as to why in the claims file. The Veteran currently asserts that his hemorrhoids and bilateral heel spurs manifested in service while stationed in Kuwait. He further asserts that his Zenker's diverticulum, blood clot/DVT and cellulitis are secondary to his hemorrhoids and that these disabilities are essentially all interrelated. Recently, in the September 2013 brief, the Veteran's representative further asserted that the Veteran's DVT manifested in service as the Veteran reported joint pain in the ankle and knees and cramps in the calf muscles at separation. Pre-service treatment records showed that in March 1982, the Veteran was diagnosed with peptic ulcer disease. Subsequently, in December 1982, the Veteran was seen for hemorrhoids, which resolved. However, again, in March 1986, the Veteran was seen for hemorrhoids. In March 1989, his private physician provided letters indicating that the Veteran was not plagued with peptic ulcer disease and that his upper GI was normal with no ulcers found. The Veteran's entrance examination in March 1989 was silent with respect to any abnormalities. However, in statements of record, the Veteran claims that he had surgery for his hemorrhoid while stationed at Fort Hood, Texas when he returned from Kuwait. While service treatment records do not document any such surgery, in his September 1991 report of medical history associated with his service examination prior to discharge, the Veteran reported piles or rectal disease, described as hemorrhoids. He also reported swollen or painful joints as well as leg cramps in the calves. Additional post service private treatment records associated with the file since the Board's prior remand showed a longstanding history of heartburn, indigestion, dyspepsia and free reflux with previous history of Zenker's diverticulum for which the Veteran underwent repair in 1995. Follow up VA treatment records showed that he subsequently developed a DVT, blood clot and cellulitis. A November 2003 VA treatment record shows that the Veteran complained of his heels feeling sore. A December 2003 x-ray of the feet showed a minimal calcaneal spur of the right foot. A December 2003 clinical record showed an assessment of mild right plantar fasciitis. The Board observes that the Veteran was afforded a VA examination in June 2007. The examiner opined that the Veteran's gastroesophageal reflux disease, diverticulitis, venous thrombosis and venous insufficiency were less likely than not related to service because symptoms and diagnoses were five to six years after discharge. However, the examiner did not address the Veteran's lay statements of pertinent symptomatology or provide any further rationale for this opinion. Further, importantly, numerous additional treatment records have been associated with the claims file that was not considered by the examiner. Moreover, the Veteran has not been afforded a VA examination with respect to his hemorrhoids or any claimed secondary disabilities. VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for determining whether the evidence 'indicates' that there 'may' be a nexus between a current disability and an in-service event, injury, or disease is a low one. McLendon, 20 Vet. App. at 83. Furthermore, once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Hence, under the circumstances of this case, and given the deficiencies in the June 2007 VA examination outlined above, the Board finds that another medical examination and opinion by an appropriate physician would be helpful in resolving the claims for service connection. The Veteran is hereby notified that failure to report to any scheduled examination(s), without good cause, may result in denial of the claim(s). See 38 C.F.R. § 3.655(a),(b) (2013). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to any scheduled examination(s), the RO should obtain and associate with the claims file a copy(ies) of the notice(s) of the examination(s) sent to him by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo examinations, to ensure that all due process requirements are met, and that the record before each examiner is complete, the RO should obtain and associate with the claims file all outstanding pertinent records. In this regard, the Veteran has reported undergoing surgery for his hemorrhoids at Fort Hood, Texas upon returning from Kuwait in April 1991. The RO should contact the National Personnel Records Center (NPRC) to obtain any surgical/hospital records from April 1991 until the Veteran's discharge in October 1991 from Fort Hood, Texas, following the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. As regards VA records, the Veteran's Virtual VA folder currently includes outpatient treatment records dated since July 2012 from the Charleston, South Carolina VA Medical Center (VAMC). However, more recent records from this facility may exist. The Board emphasizes that 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). Hence, the RO should obtain from the Charleston VAMC, all outstanding, pertinent records of evaluation and/or treatment of the Veteran since July 2012, following the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. The RO should also give the appellant another opportunity to provide information and/or evidence pertinent to the claims on appeal, notifying him that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). In its letter, the RO should specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private records. Thereafter, the RO should attempt to obtain any additional evidence for which the appellant provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2013). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal. Accordingly, these matters are hereby REMANDED for the following action: 1. Obtain from the NPRC any surgical/hospital records for the Veteran, dated from April 1991 to October 1991 from Fort Hood, Texas. Follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Obtain from the Charleston VAMC all outstanding, pertinent records of evaluation and/or treatment of the Veteran, dated since July 2012. Follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 3. Ensure that any VA examination reports prepared in association with the issues on appeal (as referenced in the October 2012 SSOC) are associated with the record and if no such examinations were done, a clear explanation should be provided in the claims file. 4. Furnish to the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 5. If the Veteran responds, obtain all identified evidence following the procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 6. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA examination(s), by one or more appropriate physician(s), at a VA medical facility, to address the etiology of any claimed hemorrhoids, heel spurs, Zenker's diverticulum, blood clot, DVT and cellulitis. The entire claims file, to include a complete copy of the REMAND, and copies of any relevant Virtual VA records, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented history and assertions. All indicated tests and studies (to include x-rays, if necessary) should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail. With respect to hemorrhoids, the physician should offer an opinion, consistent with sound medical principles, and based on consideration of the Veteran's in-service and post-service history and assertions, that addresses: (1) whether the disability clearly and unmistakably existed prior to service entrance, and, if so (2) whether the disability was clearly and unmistakably not aggravated (i.e., permanently worsened beyond the natural progression) during or as a result of service. If hemorrhoids are found not to have clearly and unmistakably existed prior to service, the examiner is to opine as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that any such disability had its onset in, or is otherwise medically-related to the Veteran's military service, to include complaints therein. With respect to heel spurs, Zenker's diverticulum, blood clot, DVT and cellulitis, the examiner is to opine as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that any such disability had its onset in, or is otherwise medically-related to the Veteran's military service, to include complaints therein. If the examiner determines that hemorrhoids are not related to service, the examiner should opine as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that Zenker's diverticulum, blood clot, DVT or cellulitis (a) was caused, or (b) is aggravated by (worsened beyond the natural progression) by the Veteran's hemorrhoids. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. In rendering the requested opinions, the examiner should specifically consider and discuss all pertinent medical and lay evidence, to include service treatment records and the Veteran's assertions of continuing symptoms since the in-service incidents. The physician should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report. 7. If the Veteran fails to report to any scheduled examination(s), obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination(s) sent to him by the pertinent VA medical facility. 8. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 9. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claims remaining on appeal. If the Veteran fails, without good cause, to report to any examination scheduled in connection with any reopened claim(s), in adjudicating the claim(s), apply the provisions of 38 C.F.R. § 3.655(b), as appropriate. Otherwise, adjudicate each remaining claim in light of pertinent evidence (to particularly include all evidence added to the record since the RO's last adjudication of the claims), and legal authority. 10. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and reflects review of all pertinent evidence of record (including VA medical records in the Virtual VA file) and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2013).