Citation Nr: 1508628 Decision Date: 02/27/15 Archive Date: 03/11/15 DOCKET NO. 10-09 233 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an increased rating for claudication of left lower extremity, currently evaluated as 40-percent disabling. 2. Entitlement to an increased rating for claudication of right lower extremity, currently evaluated as 20-percent disabling. 3. Entitlement to an increased rating for residuals of right hip strain, currently evaluated as 10-percent disabling. 4. Entitlement to an increased rating for residuals of left hip strain, currently evaluated as 10-percent disabling. 5. Entitlement to an increased rating for degenerative joint disease (DJD) bilateral knees, each currently evaluated as 10-percent disabling. 6. Entitlement to an increased rating for hypertension, currently evaluated as 10-percent disabling. 7. Entitlement to a total disability rating based on individual unemployability (TDIU). 8. Entitlement to service connection for diabetes mellitus type II. 9. Entitlement to service connection for numbness of both feet. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The Veteran served on active duty from December 1972 to October 1992. This appeal to the Board of Veterans' Appeals (Board) arose from rating decisions of the Department of Veterans' Affairs (VA) Regional Office (RO) in Los Angeles, California. A June 2007 rating decision denied entitlement to service connection for numbness of the feet due to cold weather exposure; and, an April 2009 rating decision denied increased ratings for the bilateral claudication, bilateral hip, bilateral knee, and hypertension disabilities; denied entitlement to a TDIU; and, denied entitlement to service connection for diabetes mellitus. The Veteran appeared at a Board hearing at the RO in July 2014 before the undersigned Veterans Law Judge. A transcript of the hearing testimony is associated with the claims file. In addition to his paper claims file, the Veteran also has Virtual and VBMS VA paperless claims files, which are highly secured electronic repositories that are used to store and review documents involved in the claims process. The Board has reviewed the contents of both files while reviewing this appeal. The issues of entitlement to service connection for a respiratory disorder and whether new and material evidence has been received to reopen a claim for entitlement to service connection for a low back disability have been raised by the record in a March 2007 letter and the March 2010 Substantive Appeal (VA Form 9), but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The types of evidence that indicate that a current disability may be associated with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, at 83. In a statement dated in February 2010, P. Singh, M.D., who opined that the Veteran was exposed to Agent Orange in Korea, because these drugs do not break down, but remain in the soil and water for many years after their use. He further opined that the Veteran had acquired diabetes due to "some type of chemical agent, very possibly Agent Orange or some other chemical that he was around or used in the military." This opinion is equivocal, but triggers VA's duty to provide an examination. The Veteran testified at the hearing that he was in receipt of disability benefits from the Social Security Administration (SSA). Once VA is put on notice that the Veteran is in receipt of such benefits, VA has a duty to assist the claimant by obtaining the related records. Woods v. Gober, 14 Vet. App. 214, 221-22 (2000); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). The SSA award letter is in the claims file, but the decision awarding benefits and the records considered in that decision are absent. The Veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination in 2009. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). His hearing testimony suggested that his claudication, hip, knee, and hypertension disabilities have worsened since the last examinations. See 38 C.F.R. § 3.159(a)(2) (2014). Accordingly, the case is REMANDED for the following action: 1. The AOJ should ask the Veteran provide the names, addresses, approximate dates of treatment of all non-VA health care providers who treated him for the disorders on appeal and the dates of any such VA treatment. Ask the Veteran to authorize VA to obtain all records of his treatment by Dr. P. Singh. After the Veteran has signed authorization for VA to obtain non-VA treatment records, those records not already in the claims file should be obtained. Identified VA treatment records should also be obtained. 2. The AOJ should obtain from the SSA, the records pertinent to the Veteran's claim for Social Security disability benefits as well as the medical records relied upon concerning that claim. 3. If the AOJ cannot obtain any requested records; the Veteran and his representative should be notified of the missing records; the efforts made to obtain them; and of further actions that will be taken with regard to the claim; in order to allow the veteran the opportunity to obtain and submit those records for VA review. 4. After the above is complete, the AOJ should arrange VA examinations to determine the current severity of the Veteran's claudication, hip, knee, and hypertension disabilities. The claims folder must be made available to the examiner for review as part of the examination. All indicated diagnostic tests should be performed. As concerns the musculoskeletal disabilities, aside from addressing the range of motion of the hips and knees, the examiner is requested to specifically address the extent, if any, of functional loss of use of the hips and knees due to pain/painful motion, weakness or premature fatigability, incoordination, limited or excess movement, etc., including at times when the Veteran's symptoms are most prevalent - such as during flare-ups or prolonged use. And if possible, these findings should be portrayed in terms of degrees of additional loss of motion. Each examiner is asked to assess the impact on the Veteran's activities of daily living and the occupational impairment of the Veteran's disabilities, both individually and cumulatively. The examiners are also asked to determine the Veteran's symptomatology that is due to the service-connected disabilities, and that is due to nonservice-connected disabilities. If the distinction cannot be made, please provide an explanation as to why. 4. The Veteran should be afforded a VA examination to determine whether the claimed diabetes mellitus is due to in-service exposures. The examiner should review the claims file, including the opinion of Dr. Singh and the Board decision submitted by the Veteran that granted service connection for diabetes mellitus due to potential herbicide exposure from service in Korea in 1976 and 1977. The examiner should provide an opinion as to: Whether it is at least as likely as not that the Veteran was exposed to herbicides while serving in Korea (personnel records show the Veteran was stationed in Korea from January to September 1978; from January 1981 to December 1983; and from February to September 1986); and Whether the Veteran otherwise developed diabetes as a result of other in-service chemical exposure or other in-service diseases or injuries. The examiner should provide reasons for the opinions. 5. If any benefit sought on appeal is not fully granted, the AOJ should issue a supplemental statement of the case. The case should thereafter be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. VA will notify him if further action is required on his part. He 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 2014). _________________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).