Citation Nr: 1414493 Decision Date: 04/03/14 Archive Date: 04/11/14 DOCKET NO. 10-47 210 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for degenerative disc disease of the lumbar spine. 2. Entitlement to an initial evaluation in excess of 10 percent for left knee collateral ligament strain. 3. Entitlement to an initial compensable evaluation for stage 1 kidney disease with hypertension. 4. Entitlement to service connection for a bilateral eye disorder, to include bilateral astigmatism with bilateral opacity stromal and glaucoma. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran served on active duty from August 1988 to August 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The issue of entitlement to an initial higher rating for right shoulder supraspinatus tendinopathy and anterior bursitis was also on appeal from the September 2008 rating decision. However, in his November 2010 substantive appeal, the Veteran indicated that he no longer wished to continue his appeal of this matter. As such, this matter is not currently before the Board. In August 2013, the Veteran submitted additional evidence along with a waiver of RO consideration of this evidence. 38 C.F.R. § 20.1304(c) (2013). Therefore, the Board may properly consider such newly received evidence. This appeal was processed using the Virtual VA paperless claims processing system. The Board notes that, in addition to the Virtual VA record, there is another paperless, electronic record in the Veterans Benefit Management System (VBMS) associated with the Veteran's claims. A review of the Veteran's VBMS electronic claims folder reveals that the documents are duplicative of records already associated with the Virtual VA file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). Initially, the Board observes that additional VA treatment records dated to July 2013 were associated with the Veteran's Virtual VA record after the most recent supplemental statement of the case was issued in October 2011. As such, these records were not considered by the agency of original jurisdiction (AOJ) in association with the current appeal. The appellate scheme set forth in 38 U.S.C.A. § 7104(a) contemplates that all evidence will first be reviewed at the AOJ 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). While such records were received subsequent to the certification and the Board's receipt of the Veteran's appeal, as these claims are being remanded, the AOJ should consider the additional VA treatment records, as well as any additional evidence obtained based on the development discussed below, in the readjudication of the Veteran's claims. With respect to the issues of entitlement to initial higher ratings for the Veteran's service-connected low back and left knee disabilities, the Veteran was most recently afforded a VA examination in August 2008, almost six years ago. However, subsequent private treatment records appear to indicate an increase in severity. In this regard, a November 2012 private treatment record indicated increasing pain with certain activities. Moreover, at the previous VA examination, there was no evidence of radiating pain with respect to the low back; however, the November 2012 record showed that the Veteran reported radiating symptoms. Further, with respect to the left knee, x-rays at the time of the 2008 VA examination were normal; however, subsequent treatment records indicate that the Veteran now had arthritis of the left knee. While a new examination is not required simply because of the time which has passed since the last examination, VA's General Counsel has indicated that a new examination is appropriate when there is evidence of an increase in severity since the last examination. VAOPGCPREC 11-95 (1995). Accordingly, the Board finds that a new VA examination is necessary to determine the current severity of the Veteran's service-connected low back and left knee disabilities. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). The issue of entitlement to an initial compensable rating for kidney disease with hypertension is also on appeal. However, while the appeal was pending at the Board, the AOJ issued an August 2013 rating decision granting service connection again for hypertension with an initial noncompensable rating, effective December 30, 2011. It is unclear why the AOJ issued this separate rating decision as service connection for hypertension was already granted in association with the Veteran's kidney disease and assigned an initial noncompensable rating in the September 2008 rating decision, which was appealed by the Veteran. As such, this matter must be returned to the AOJ to reconcile the separate awards of service connection for hypertension. The Board also observes that the Veteran was afforded a VA examination to address his hypertension in July 2013. However, the Veteran's records were not available for review and this examination did not address the severity of the Veteran's associated stage 1 kidney disease. Importantly, the Veteran has submitted documentation of numerous blood pressure readings. As such, these matters must also be returned to the AOJ for clarification as to why a separate rating decision was issued in August 2013 with respect to Veteran's hypertension as well as afford the Veteran a contemporaneous VA examination to address the severity of his kidney disease with hypertension. The Veteran is also seeking service connection for a bilateral eye disorder. The Veteran was afforded a VA examination in July 2008 prior to his retirement. At the time the Veteran was diagnosed with astigmatism of both eyes and cornal opacity stromal. Subsequent VA treatment records also showed an assessment of glaucoma suspect. The Board recognizes that congenital or developmental defects, such as refractive error of the eye, are not considered "diseases or injuries within the meaning of applicable legislation" and, hence, do not constitute disability for VA compensation purposes. See 38 C.F.R. §§ 3.303(c), 4.9. However, a congenital defect can still be subject to superimposed disease or injury. VAOPGCPREC 82-90. If such superimposed disease or injury does occur, service connection may be warranted for the resulting disability. Id. In the instant case, cornal opacity stromal does not appear to be a congenital or developmental defect. Importantly, an April 2004 service treatment record documented an abrasion on the right eye. Moreover, the July 2008 VA examiner did not provide any sort of etiological opinion. As such, this issue must be returned for another VA examination. 38 C.F.R. § 3.156; see McLendon v. Nicholson, 20 Vet. App. 79 (2006). Lastly, it appears that the Veteran has received treatment for his disabilities through private providers as well as at the VA Medical Center (VAMC) in Gainesville, Florida. As noted above, the Virtual VA record includes VA treatment records dated to July 2013. The Veteran has also submitted additional private treatment records from Therapy Works of Jacksonville and Jacksonville, Florida, Naval Hospital. In light of the need to remand for other matters, the Board finds that efforts should be made to ensure that all pertinent VA and any additional private medical records have been associated with the Veteran's record. In this regard, VA treatment records dated from July 2013 to the present should be obtained. 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992). Further, any additional private treatment records should also be obtained, after receipt of any necessary authorization and consent from the Veteran, and then associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. After obtaining any necessary authorization from the Veteran (i.e., a completed and signed VA Form 21-4142) and any additional information deemed necessary, the AOJ should request any additional private treatment records pertaining to the issues on appeal, to specifically include any additional treatment records from Therapy Works of Jacksonville and Jacksonville, Florida, Naval Hospital. The AOJ should also obtain any VA treatment records dated from July 2013 to the present. Any and all negative responses should be properly documented in the claims file, to include preparing a memorandum of unavailability and following the procedures outlined in 38 C.F.R. § 3.159(e), if appropriate. 2. After obtaining all outstanding treatment records, the Veteran should be scheduled for an appropriate VA orthopedic examination to assess the severity his service-connected low back disability and left knee disability. Pertinent records from Virtual VA, to include a complete copy of the REMAND, must be made available to the examiner, and the examination report should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner should conduct range of motion testing of the back and left knee (expressed in degrees). The examiner should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the low back and left knee. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss of the low back and left knee due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. With respect to the low back, the examiner should clearly indicate whether the Veteran has any neurological manifestations of the lumbar spine disability. For each neurological impairment identified, the examiner should clearly indicate whether such constitutes a separately ratable disability, and, if so, should provide an assessment of the severity of such disability. With respect to the left knee, the examiner should also indicate whether there is any lateral instability and/or recurrent subluxation. If instability is present, the examiner should, based on the examination results and the Veteran's documented medical history and assertions, assess whether such instability is slight, moderate or severe. With respect to both disabilities, the examiner should also comment on the Veteran's functional impairment with respect to his activities of daily living and the effect on his employment and daily life. The examiner must provide a rationale for any opinion proffered. 3. After obtaining all outstanding treatment records, the Veteran should be scheduled for an appropriate VA examination to assess the severity his service-stage 1 kidney disease with hypertension. Pertinent records from Virtual VA, to include a complete copy of the REMAND, must be made available to the examiner, and the examination report should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner should clearly indicate whether the albumin is constant or recurring with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension productive of diastolic pressure predominantly 100 or more or systolic pressure predominantly 160 or more; or a history of diastolic pressure predominantly 100 or more that requires continuous medication for control; or whether the Veteran has more severe renal dysfunction allowing for application of the applicable rating criteria. The examiner should also comment on the Veteran's functional impairment with respect to his activities of daily living and the effect on his employment and daily life. The examiner must provide a rationale for any opinion proffered. 4. After obtaining any outstanding records, arrange for the Veteran to undergo a VA eye examination by an ophthalmologist at a VA medical facility. Pertinent records from Virtual VA, to include complete copy of the REMAND, must be made available to the examiner, and the examination report should include discussion of the Veteran's documented medical history and assertions. The examiner should clearly identify all current vision/eye disability(ies). Then, with respect to each diagnosed disability other than a refractive error, the examiner should indicate whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had its onset in or is otherwise related to the Veteran's military service. For any refractive error of the eye that is diagnosed, the examiner should offer an opinion as to whether there was additional disability due to disease or injury superimposed upon such defect during service and, if so, identify the additional disability. The examiner should specifically consider and discuss all pertinent service treatment records, any post service treatment records, and the Veteran's contentions. A detailed rationale for all opinions expressed should be provided. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence, to include all evidence received since the issuance of the October 2011 supplemental statement of the case with specific attention to the VA treatment records dated through July 2013. The AOJ should also reconcile the August 2013 rating decision that granted service connection for hypertension and assigned an initial noncompensable rating, effective December 30, 2011, with the previous award of service connection for stage 1 kidney disease with hypertension, currently evaluated as noncompensably disabling, effective September 1, 2008. If the claims are not granted to the Veteran's satisfaction, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2013). _________________________________________________ A. JAEGER 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).