Citation Nr: 1419015 Decision Date: 04/30/14 Archive Date: 05/06/14 DOCKET NO. 09-39 346 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to a rating in excess of 10 percent for a postoperative midline abdominal scar. 2. Entitlement to service connection for a low back condition, to include as secondary to splenectomy and midline abdominal scar. 3. Entitlement to service connection for a digestive condition, to include as secondary to splenectomy and midline abdominal scar. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Ozger, Associate Counsel INTRODUCTION The Veteran had active service from June 1976 to June 1996. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In a statement received September 2009, the Veteran claimed that his service-connected abdominal scar caused him to be depressed. This matter is referred to the RO for appropriate action. A review of the Virtual VA electronic records storage system as well as the Veterans Benefits Management System (VBMS) reveals additional documents pertinent to the claims. As such, future review of the claims should take into account the documents therein. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Inasmuch as the Board regrets the additional delay of this appeal, a remand is required before the claims can be properly adjudicated. The Veteran seeks a higher disability rating for his service-connected midline abdominal scar. The Board notes that the rating criteria for skin disorders, found at 38 C.F.R. § 4.118, were amended effective August 30, 2002, see 67 Fed. Reg. 49490-99 (July 31, 2002) and again in October 2008. The October 2008 revisions are applicable to claims for benefits received by the VA on or after October 23, 2008, although a veteran may request evaluation under the new criteria. See 73 Fed. Reg. 54708 (September 23, 2008). In this case, the Veteran filed his claim for increased rating in July 2008, and has not requested an evaluation under the new criteria. The Board notes, however, that the RO never sent the Veteran notification of the revised criteria. As such, a remand is necessary to provide the Veteran with such notice of the revised criteria, and give him the opportunity to elect the option of having his skin disability reviewed under the new criteria. Furthermore, the Veteran underwent a May 2009 VA examination to assess the condition of his service-connected abdominal scar. The examination revealed that there is a wide, midline abdominal scar extending from the xiphoid to just above the pubic symphysis. The scar is 24 cm. long and measures anywhere from 2.5 to 6cm. in width. There are multiple horizontal suture marks and drain scars outside of this scar. The examiner noted that the major scar was tender but not adherent, that it was smooth and not unstable, that it was depressed in its entirety and considered deep in its entirety, that there was no inflammation, edema or keloid formation, that it was hyperpigmented and indurated in its entirety, that it caused no limitation of motion or function. The Board concludes that the May 2009 VA examination is too remote in time to address the current severity of the Veteran's service-connected abdominal scar. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that a Veteran was entitled to a new examination after a two year period between the last VA examination and the Veteran's contention that his disability had increased in severity) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). Therefore, the Board must remand this matter to afford the Veteran an opportunity to undergo a VA examination to assess the current nature, extent and severity of his abdominal scar. See Snuffer, supra; VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43,186 (1995). The Veteran also seeks entitlement to service connection for a low back condition and a digestive condition, to include as secondary to service-connected splenectomy and midline abdominal scar. The Board notes that secondary service connection can be established by evidence demonstrating that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995). With regard to his low back condition claim, the Veteran was afforded a VA examination in May 2009. After diagnosing the Veteran with degenerative joint disease of the lumbar spine, the examiner noted that it was "less likely as not that the [Veteran's] low back condition is secondary to service." As rationale, the examiner said that while the Veteran was seen for low back problems in service, "this appeared to be a self-limiting lumbar strain." The examiner added that although the discharge examination showed lumbar scoliosis, it was not present during the May 2009 examination. Finally, the examiner said that there were no other complaints of the low back during service, and that he "did not see medical records relating to the [Veteran's] low back problem post military." Furthermore, the examiner noted that it was "less likely as not that the [Veteran's] low back condition is secondary to service-connected splenectomy and midline abdominal scar associated with splenectomy." As rationale, the examiner noted that he was not aware of any connection between splenectomy and generative joint disease of the lumbar spine. The Board notes that the May 2009 VA examination is inadequate because although the examiner noted that the Veteran's degenerative joint disease of the lumbar spine was not a result of his service, and it was not a result of his service-connected splenectomy and midline abdominal scar, the examiner did not offer an opinion regarding whether the Veteran's service-connected splenectomy and midline abdominal scar aggravated his lower back. As a result, because the examiner only addressed the causation aspect of secondary service connection, and did not address the aggravation aspect, the examination is inadequate. 38 C.F.R. § 3.310 (2013). The United States Court of Appeals for Veterans Claims (Court) held that the phrases "caused by" and "related to" do not address the aggravation aspect of secondary service connection. Allen, supra. at 449. The Veteran asserts that his low back condition is due to his service-connected splenectomy and midline abdominal scar. Therefore, this medical opinion is essential to the Veteran's claim. With regard to his digestive condition claim, the Veteran underwent a VA examination also in May 2009. The examiner diagnosed the Veteran with gastroesophageal reflux disease, and concluded that it was "more likely than not that his current complaint are more related to gastroesophageal reflux disease compared to any post-surgical complication for a splenectomy." The Board once again finds the May 2009 digestive condition examination inadequate for two reasons. First, the examination is inadequate because it does not offer a complete rationale. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Second, the examination is inadequate because although the examiner states that the Veteran's digestive problems are not related to any post-surgical complication for a splenectomy, it does not address whether the digestive problems were aggravated by the Veteran's service-connected splenectomy and midline abdominal scar. See Allen, supra. Therefore, because the examiner only provided an opinion on the issue of causation, but did not talk about aggravation, the examination is inadequate. Accordingly, on remand, the RO should forward the claims file to the physicians who performed the May 2009 VA examinations for digestive conditions and the spine evaluation for addendum opinions addressing whether the Veteran's low back and digestive disabilities are aggravated by his service-connected splenectomy and midline abdominal scar. To provide a clearly-stated rationale for the conclusions reached, the examiners should review the entire claims file. The RO should only arrange for further examinations of the Veteran if the May 2009 VA examiners are unavailable, or if further examination of the Veteran is deemed necessary. Finally, while on remand, the Veteran should be given an opportunity to identify any outstanding VA or non-VA treatment records. Thereafter, such records should be obtained for consideration in his appeal. Accordingly, the case is REMANDED for the following actions: 1. Provide the Veteran with a copy of the revised regulations governing evaluations of skin disabilities, and inform him of the option to be rated under the new regulations, if appropriate. 2. The Veteran should be given an opportunity to identify any outstanding VA or non-VA treatment records. Thereafter, such records should be obtained for consideration in his appeal. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and be allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. After all records and/or responses received from each contacted entity have been associated with the claims file, or a reasonable time for the Veteran's response has expired, arrange for the Veteran to undergo a new VA examination to determine the current level of severity of his abdominal scar. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should note in the examination report that the claims folder and the remand have been reviewed. The examiner should provide a detailed description of the scar(s), to include, but not limited to, the following: the measurements of the length and width of the scarring, as well as the areas of the scars in terms of square inches or square centimeters; whether the scarring is superficial (not associated with underlying soft tissue damage); whether the scarring is unstable (frequent loss of covering of skin over scar); whether the scarring is painful on examination; and whether the scar results in limited motion or other limitation of function of an affected body part. If so, the examiner should describe in detail the limitation(s), and the extent and severity thereof. If the scarring does not cause limited motion or other limitation of function of an affected body part, the examiner should specifically state so. In addition to objective findings, the examiner should fully describe the Veteran's lay accounts of functional effects caused by the scar/scarring in the final report of the evaluation, such as those impacting his daily activities and employment/employability. All opinions must be supported by a clear explanation, if necessary with citation to relevant medical findings, as appropriate, in a printed (typewritten) report. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, or a reasonable time for the Veteran's response has expired, arrange for the examiner who conducted the May 2009 VA spine examination to review the entire claims file, including a complete copy of this REMAND, to provide an addendum opinion. The physician should provide an opinion, based on review of the claims file and consistent with sound medical principles, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran's degenerative disease of the lumbar spine (a) was caused, or (b) aggravated (worsened beyond the natural progression) by the Veteran's service-connected splenectomy and midline abdominal scar. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. The examiner should also explain what he means when he says "this appeared to be a self-limiting lumbar strain." Does this "self-limiting lumbar strain" have anything to do with the Veteran's complaints of a painful scar? If the prior examiner is not available, or further examination of the Veteran is deemed warranted, arrange for the Veteran to undergo a VA examination, by an appropriate physician, at a VA medical facility, to obtain a medical opinion addressing the question and comments noted above. Under such circumstances, the contents of the entire claims file (paper and electronic), to include a complete copy of this REMAND, must be made available to the physician designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies should be accomplished (with all results made available to the examining physician prior to the completion of his or her report), and all clinical findings should be reported in detail. In rendering the requested opinion, the physician should specifically consider and discuss the in-and post-service treatment records, as well as the Veteran's contentions, and lay statements submitted in support of the claim. The examiner should especially provide an opinion to the following question: Does the Veteran's lumbar strain, or any other diagnosed back condition, have anything to do with the Veteran's complaints of a painful midline abdominal scar? The physician must provide complete rationale for the conclusions reached. 5. After all records and/or responses received from each contacted entity have been associated with the claims file, or a reasonable time for the Veteran's response has expired, arrange for the examiner who conducted the May 2009 VA digestive disorders examination to review the entire claims file, including a complete copy of this REMAND, to provide an addendum opinion. The physician should provide an opinion, based on review of the claims file and consistent with sound medical principles, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran's gastroesophageal reflux disease (a) was caused, or (b) aggravated (worsened beyond the natural progression) by the Veteran's service-connected splenectomy and midline abdominal scar. The examiner should provide an opinion as to whether it is possible for the splenectomy to have caused strictures or scar tissue that may have caused his digestive disorders. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. If the prior examiner is not available, or further examination of the Veteran is deemed warranted, arrange for the Veteran to undergo a VA examination, by an appropriate physician, at a VA medical facility, to obtain a medical opinion addressing the question and comments noted above. Under such circumstances, the contents of the entire claims file (paper and electronic), to include a complete copy of this REMAND, must be made available to the physician designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies should be accomplished (with all results made available to the examining physician prior to the completion of his or her report), and all clinical findings should be reported in detail. In rendering the requested opinion, the physician should specifically consider and discuss the in-and post-service treatment records, as well as the Veteran's contentions, and lay statements submitted in support of the claim. Again, the examiner should provide an opinion as to whether it is possible for the splenectomy to have caused strictures or scar tissue that may have caused his digestive disorders. The physician must provide complete rationale for the conclusions reached. 6. The RO/AMC must 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). 7. The RO should then readjudicate the claims. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran has the right to submit additional evidence and arguments 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). _________________________________________________ MARJORIE A. AUER 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).