Citation Nr: 1522447 Decision Date: 05/27/15 Archive Date: 06/11/15 DOCKET NO. 09-40 571 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for hypertension, also claimed due to Agent Orange exposure or, alternatively, secondary to service-connected posttraumatic stress disorder (PTSD) or service-connected systolic cardial murmur. 2. Entitlement to an increased rating for a left knee disability rated 10 percent for limited flexion prior to May 24, 2011, and rated 30 percent for limited extension from May 24, 2011. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The Veteran served on active duty from January 1962 to November 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. Jurisdiction was subsequently transferred to the RO in Atlanta, Georgia. The Veteran had a hearing before the Board in August 2014 and the transcript is of record. The Veteran filed for an increased rating for his left knee in September 2007. At that time, his left knee was rated 10 percent disabling for traumatic arthritis with limited flexion. During the pendency of this appeal, the RO granted the Veteran an increased rating to 30 percent for limited extension of the left knee, but also reduced the limited flexion rating to 0 percent. The Board explained to the Veteran at the August 2014 hearing that his appeal includes entitlement to an increased rating for his left knee disability under any and all arguably applicable diagnostic code or codes, to include whether separate disability ratings can be assigned for separate manifestations of the same service-connected disability. Additionally, after the Veteran has perfected his appeal, a subsequent rating decision awarding a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal. AB v. Brown, 6 Vet. App. 35 (1993). Accordingly, the issue is still properly before the Board here and the issue has been appropriately rephrased above. The issues were previously before the Board in September 2014, at which time they were remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his claims, to include affording him a VA examination. The requested development having been partially completed, the case is once again before the Board for appellate consideration of the issues on appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The claims were previously remanded by the Board in September 2014 primarily to obtain private treatment records from the Veteran's treating physician, Dr. Johnson, to afford the Veteran VA examinations in connection with his claims, and to ensure any and all possible theories of entitlement were considered by the RO/AMC. The Veteran was afforded VA examinations in association with his claims in October 2014. At that time, the examiner noted that the Veteran brought with him treatment records from Dr. Johnson dating from 2006 "forward," and "school bus driver physical examinations ranging from 1987-2012." Although the Veteran indicated he intended on bringing these records to the regional office to submit them into the record, they are not currently in the claims folder. Rather, the claims folder currently contains VA outpatient treatment records through October 2014 and treatment records from Dr. Johnson from 1998 to February 2008. The claims folder also contains opinion letters from Dr. Johnson throughout the appellate time frame, most recently dated July 2014 (albeit mislabeled as August 1996 on the VBMS system). A remand is necessary to ensure these records are obtained. The RO/AMC must also take this opportunity to obtain VA outpatient treatment records from October 2014 to the present. With regard to the hypertension claim, the Veteran claims he is entitled to service connection because his blood pressure was first recorded as elevated in service or within one year of service. Alternatively, he believes his current hypertension is secondary to his service-connected PTSD, service-connected heart murmur, or in-service exposure to Agent Orange herbicides while in Vietnam. The Board previously remanded this claim, in part, to ensure the Veteran received adequate notice on how to substantiate a claim seeking entitlement to service connection claimed secondary to a service-connected disability. See 38 C.F.R. § 3.310 (2014). While a notice letter was sent to the Veteran in September 2014, it did not contain notice information on how to substantiate a secondary service-connection claim. Corrective notice is required. The Veteran's representative in an April 2015 statement claims new VA examinations are needed because the October 2014 VA examiner was a family practitioner instead of a specialist and did not provide adequate reasons and bases. The Board disagrees and finds no need to obtain new VA examinations in this case. The Board finds the October 2014 VA examiner adequately addressed all the raised theories of entitlement. A family physician, moreover, is competent to evaluate the likely etiology of the Veteran's hypertension, the opinion of which was based on relatively routine clinical findings. See Cox v. Nicholson, 20 Vet. App. 563 (2007) (noting that there is no requirement that medical examinations be conducted by particular specialists only, and that the issue involves whether the individual has the types of education and clinical training to evaluate the medical issue at hand). Additionally, the examiner specifically noted reviewing the records that are currently not in the claims folder, but were brought to the examiner by the Veteran himself. With regard to his left knee claim, the Veteran's claimed manifestations include arthritis, limited flexion, limited extension, instability, frequent locking, and effusion in the joint. The October 2014 VA examiner addressed all these claimed manifestations and outlined all physical findings. As explained in the Board's prior remand, the diagnostic codes offer several ratings for the left knee depending on the symptomatology. Indeed, several ratings are permitted to be assigned at the same time as long as none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The VA General Counsel has held that a claimant who has limitation of motion and instability of a knee may be rated separately under Diagnostic Codes 5260/5261 and 5257, while cautioning that any such separate rating must be based on additional disabling symptomatology. VAOPGCPREC 23-97 (July 1997); VAOPGCPREC 9- 98, (August, 1998). Separate ratings are also available for limitation of flexion and limitation of extension under DCs 5260 and 5261, provided that the degree of disability is compensable under each set of criteria. VAOPGCPREC 09-04; 69 Fed. Reg. 59990 (2004). Separate ratings are also permitted for semilunar cartilage abnormalities under DC 5258 or 5259. See generally id. The Board previously instructed the RO/AMC to consider any and all arguably applicable knee diagnostic codes, to include whether additional separate ratings are warranted. The February 2015 SSOC does not contain any consideration of whether separate ratings are warranted. Rather, the RO/AMC's discussion was limited to whether an increased rating was warranted given the evidence. The Board notes the most recent VA examination dated October 2014 indicates physical examination findings of limited flexion, limited extension, arthritis, dislocated semilunar cartilage "with frequent episodes of locking, pain, and effusion into the joint," as well as other manifestations. Since it is necessary to remand this issue for other reasons, the RO/AMC is once again directed to consider the applicability of separate ratings for the left knee disability pursuant to the Board's prior remand instructions and as authorized under the regulations. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The RO/AMC should once again ensure that the Veteran is provided with all appropriate notice as to the issues on appeal, to include the evidence necessary to substantiate claims of entitlement to service connection for hypertension secondary to his service-connected heart murmur and/or PTSD. 2. Ask the Veteran to identify and provide release forms for any and all sources of treatment for his left knee and hypertension and obtain the Veteran's medical records for treatment from any identified source, to include Dr. Johnson from February 2008 to the present, any physical examinations conducted while he was employed as a school bus driver, and VA outpatient treatment records from October 2014 to the present. The Veteran should be specifically notified that none of these records are currently in the claims folder other than noted by the 2014 VA examiner. The Veteran should be asked to provide copies of any evidence he gave to the 2014 VA examiner to associate with his claims folder. All efforts to obtain VA and private medical records should be fully documented. Two attempts must be made to obtain any identified private records, unless the first attempt reveals that further attempts would be futile. If records are identified but not obtained, the Veteran must be informed of that fact, informed what steps were taken to obtain them, and informed that the claim will be adjudicated without the records but that if he obtains and submits them at a later date the claim may be readjudicated. See Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505; 126 Stat. 1165, 1191-93. 3. Then, readjudicate the Veteran's issues remaining on appeal, to include consideration of any and all applicable left knee diagnostic codes, the applicability of separate ratings, and consideration of entitlement to a higher rating of any currently awarded left knee rating. If the claims remain denied, issue a supplemental statement of the case (SSOC) to the Veteran and his representative, and they should be given an opportunity to respond, before the case is returned to the Board 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). The claims 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).