Citation Nr: 1343049 Decision Date: 12/27/13 Archive Date: 01/07/14 DOCKET NO. 11-12 728 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES Entitlement to service connection for rash and scarring of the lower extremities, to include the bilateral feet and legs (a skin disability). Entitlement to service connection for rash and scarring of the right ankle. Entitlement to service connection for hypertension. Entitlement to service connection for lumbar strain (referred to as a back disability). Entitlement to service connection for gastroesophageal reflux disease (GERD). Entitlement to an increased disability rating for headaches, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: American Legion WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD R. Tyson, Associate Counsel INTRODUCTION The Veteran has multiple periods of active duty service from April 1989 to October 1996, from February 2003 to September 2003, and from June 2008 to June 2009. This appeal comes to the Board of Veterans' Appeals (Board) from a January 2010 rating decision. In January 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's electronic files on the "Virtual VA" and VBMS systems to insure a total review of the evidence. The issues of entitlement to service connection for GERD and back disability, and entitlement to an increased rating for migraines are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office via the Appeals Management Center (AMC) located in Washington, DC. FINDINGS OF FACT 1. The evidence establishes that the Veteran's diagnosed skin disability affecting the Veteran's lower extremities, to include the feet, legs, and right ankle, had its onset during his active military service. 2. The evidence establishes that the Veteran's hypertension had its onset within one year of the Veteran's separation from active military service. CONCLUSIONS OF LAW 1. Criteria for service connection for rash and scarring of the right ankle has been met. 38 U.S.C.A. § 1110, 1131 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.303 (2013). 2. Criteria for service connection for rash and scarring of the feet and legs bilaterally has been met. 38 U.S.C.A. § 1110, 1131 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.303 (2013). 3. Criteria for service connection for hypertension has been met. 38 U.S.C.A. § 1101, 1110, 1112, 1113, 1131 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service with competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (or nexus) between the present disability and the disease or injury incurred or aggravated during service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Lower Extremity Skin Disorder Although separated by the RO, for all intense purposes, the skin disability, diagnosed as chronic dermatitis by multiple VA dermatologists, is prevalent throughout the lower extremities with some areas, such as the right ankle, having more residual scarring than other areas. The Board will discuss this disability as one for the purposes of this decision. The Veteran contends that his skin disability, to include a waxing and waning rash with residual scarring, occurred due to flea bites while in the Persian Gulf in 2008. The record reflects that the Veteran attended a sick call in 2008 related to flea bites on the Veteran's right ankle during active duty. There is also evidence of July 2009 appointment after separation from the military when the Veteran indicated a continued rash from flea bites. In addition to the flea bites, the Veteran has indicated that he was exposure particulate matters from burning pits while stationed in Balad, Iraq, which may have also contributed to his skin disability. For clarification, the RO send the Veteran for a VA examination in June 2011 with a dermatologist to assess the nature and etiology of the Veteran's skin disorder. The examiner, while confirming a current disability, stated that he could not make an opinion without resorting to mere speculation regarding the cause of the Veteran's disorder to any known chemical or irritant that the Veteran was exposed to while in the Persian Gulf. Based on the record, it is clear that the Veteran had no lower extremity skin disorders upon entrance during any period of active duty service, but upon leaving the military in 2009, has endured a chronic rash and scarring. With the likely etiology coming from a variety of in-service sources, the Board resolves any doubt in favor of the Veteran. Consequentially, the Veteran's service connection claims for rash and scarring of his right ankle and his legs and feet bilaterally is granted. The Board now turns its discussion to the Veteran's service connection claim for hypertension. Hypertension Based on the Veteran's statements of record, he contends that he was first diagnosed with hypertension two months after separation from the military in either 2003 or 2009. In addition to the general standard discussed above, service connection may be found on a presumptive basis when a chronic disease such as hypertension becomes manifest to a degree of 10 percent within one year of the veteran's discharge from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the veteran's period of service. Hypertension manifest to 10 percent requires diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. 38 C.F.R. § 4.104, Diagnostic Code 7101. The Board examined the Veteran's enlistment and separation examinations and treatment notes for all tours of duty. The Board notes that during the Veteran's initial enlistment exam in November 1988, his blood pressure levels were within normal limits (110/80). However, with each additional tour of duty, the Veteran's blood pressure became increasingly elevated, while remaining within normal levels until his 2009 separation from the military. Upon his return to the United States in 2009, the Veteran's blood pressure levels had exceeded normal limits to a point where the post-deployment examiner requested that the Veteran follow up with his primary care physician for a hypertension evaluation. Following the advice of the post-deployment examiner, the Veteran made an appointment at the Oklahoma VA Medical Center in late July 2009. During that appointment, the Veteran's blood pressure was 151/104 and hypertension was noted as an active disease on the treatment notes. Additionally, the Veteran was told to take blood pressure medication and to follow-up with the hypertension clinic nurse in the following month. Per the Veteran's testimony, he continues to undergo treatment for hypertension. In subsequent follow-up appointments, the Veteran's blood pressure remained excessively elevated. In the majority of the Veteran's subsequent appointments for various medical issues, his diastolic pressure remained above 100 despite taking blood pressure medications. For example, at the December 2009 VA examination, the Veteran had separate diastolic readings of 112, 110 and 105. The Board recognizes that the most recent readings of record have lowered the Veteran's diastolic levels below 100, but recognizes the Veteran's continued need for blood pressure monitoring and medication manage this disability. At a minimum, the Board finds the evidence of record supports hypertension compensable to at least a 10 percent, which consistent with a favorable service connection claim based upon continuity of symptomatology). In sum, based on the findings of elevated blood pressure in service, and the medical records documenting continued elevated blood pressure since separation, the Board finds that service connection for hypertension granted. In light of the favorable result for the above service connection issues, a detailed discussion of VA's various duties to notify and assist is moot. Any potential failure of VA in fulfilling these duties is deemed harmless error. ORDER Service connection for rash and scarring of the lower extremities, to include the Veteran's feet and legs is granted. Service connection for rash and scarring of the right ankle is granted. Service connection for hypertension is granted. REMAND To ensure a fully developed record, a remand is required for the issues of service connection for a low back disability, GERD and an increased disability rating for migraines for the foregoing reasons. First, at the Board hearing, the Veteran indicated there were outstanding private treatment records. In order to ensure that the record is complete, these outstanding records must be obtained. Furthermore, due to the passage of time, VA medical records should also be updated and added to the record. Next, the examination afforded the Veteran in November 2009 failed to give an opinion regarding the relationship between the Veteran's claimed service connected disabilities (back disability and GERD) to his military service. Furthermore, the Veteran indicated that his headaches of a frequency and severity beyond what was noted in the November 2009 VA examination report. Based on these considerations, the Board finds the Veteran entitled to a new examination to assess severity of his migraines as well as other claimed service connected disabilities with a nexus opinion with rationale, where appropriate. Accordingly, the case is REMANDED for the following action: 1. Obtain all pertinent, non-duplicative medical records from the VA Medical Center located in Oklahoma City, Oklahoma (from 2011 to present). 2. Obtain a list of private treatment facilities attended by the Veteran with an authorization to obtain those records. Thereafter, the RO/AMC should attempt to obtain these records and associate them with the Veteran's claims file. 3. Once the record is updated with the above development, the RO/AMC must schedule the Veteran for another VA examination to assess the Veteran's GERD, back disability, and migraines. The relevant documents in the claims file should be reviewed by the examiner in connection with the examination. Any relevant treatment records contained in the Virtual VA file or VBMS 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 and all indicated evaluations, studies and tests deemed necessary by the examiner should be accomplished. Upon a review of the entire claims file and examination of the Veteran, the examiner should respond to the following: Is it at least as likely as not (50 percent probability or greater) that the Veteran's GERD is caused by or is otherwise directly related to an event or injury during military service? Is it at least as likely as not (50 percent probability or greater) that the Veteran's back disability is caused by or is otherwise directly related to an event or injury during military service? In addressing this question, the examiner should render an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's back disability is directly related to the Veteran's scoliosis (noted in the Veteran's initial enlistment application and November 1988 enlistment examination). The examiner should also clarify, to the extent possible, as to whether the Veteran's scoliosis is congenital and/or due to the Veteran's posture. 4. Thereafter, readjudicate the issue on appeal. If the benefit sought on appeal is not granted, the Veteran and representative should be provided with a supplemental statement of the case and afforded the appropriate time period within which to respond thereto. 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). ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs