Citation Nr: 1534774 Decision Date: 08/14/15 Archive Date: 08/20/15 DOCKET NO. 11-32 927 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for a skin disability of the bilateral feet, claimed as blistering, to include as secondary to service-connected diabetes mellitus, type II. 2. Entitlement to service connection for a right knee disability. 3. Entitlement to service connection for hypertension, to include as due to herbicide exposure, to include as secondary to service-connected diabetes mellitus, type II, or service-connected coronary artery disease. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Delhauer, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1966 to November 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2009 and January 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran's claims of service connection for blistering of the left foot and blistering of the right foot have been adjudicated separately, solely as to that condition. As the Veteran seeks service connection for a skin disability of both feet, however diagnosed, and in light of the multiple diagnoses of skin disabilities of the feet of record, the matter is being addressed as characterized as stated on the title page, to afford the Veteran a broader scope of review. See Browkowski v. Shinseki, 23 Vet. App. 79 (2009) (the Veteran may satisfy the requirement to identify the benefit sought by referring to a body part or system that is disabled or by describing symptoms of the disability); see also Clemons v. Shinseki, 23 Vet. App. 1 (2009) (regarding the scope of a claim). The Veteran also perfected an appeal as to the issues of entitlement to service connection for peripheral neuropathy of the left lower extremity and right lower extremity. In an August 2013 rating decision, the RO granted service connection for peripheral neuropathy of the left and right lower extremities. As these decisions represent a full grant of the benefits sought, those issues are not before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board). In May 2015, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the evidentiary record. This is a paperless file located on the Veterans Benefits Management System. Documents contained on the Virtual VA paperless claims processing system include VA treatment records from the Jackson VA Medical Center (VAMC) dated from November 2011 to July 2013; other documents are duplicative of the evidence of record, or are not relevant to the issues currently before the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND First, the evidentiary record indicates there are outstanding VA treatment records. In his September 2008 claim, the Veteran reported that he has received treatment at the Jackson VAMC since January 2005; treatment records from the Jackson VAMC associated with the evidentiary record date back only to December 2006. Further, the Jackson VAMC treatment records dated from September 2009 to April 2011 associated with the evidentiary record appear to only pertain to the Veteran's claimed right knee disability, and may not include all of the Veteran's treatment for all claimed conditions. On remand, the AOJ should obtain all outstanding VA treatment records. Bilateral Feet In a March 2012 statement, Dr. J.D.P. stated that he had not treated the Veteran, but he opined that the Veteran's blistering feet are more likely than not related to his diabetes. Upon VA examination in July 2013, however, the Veteran reported that he is followed by Dr. J.D.P. for diabetic ulcerations of his feet. See July 2013 VA Diabetic Sensory-Motor Peripheral Neuropathy examination report. On remand, the AOJ should make appropriate efforts to obtain any private treatment records regarding the Veteran's feet. The Veteran was afforded VA examinations of the skin of his feet in July and August 2013. Both VA examiners diagnosed dyshidrosis, and opined that it was less likely than not that this diagnosis was caused by or a result of the Veteran's service-connected diabetes mellitus, type II. However, neither examiner opined as to whether the Veteran's current skin disability of the bilateral feet is aggravated by his service-connected diabetes mellitus. On remand, the AOJ should obtain an addendum medical opinion. Right Knee During his May 2015 hearing before the Board, the Veteran testified that during the 1980s, he had surgery on his right knee for damage to the inside of the knee, and that the surgeon told him that the current condition of his right knee was due to an old injury. The Veteran testified that the only injury to his right knee was during his active duty service, which is noted in his service treatment records. The Veteran testified that the surgeon has since passed away, but that he does have the scar from that surgery. See also March 2009 VA primary care follow-up note (Veteran reports he had arthroscopic surgery on his right knee). On remand, the AOJ should make appropriate efforts to obtain any private treatment records regarding the Veteran's right knee. A current diagnosis of right knee degenerative joint disease is of record. See April 2011 VA primary care follow-up note; April 2011 right knee x-ray report. As noted above, the Veteran's service treatment records include treatment for a right knee injury. See May 1969 service treatment record; see also October 1969 separation Report of Medical History. The Veteran testified before the Board that he has experienced pain in his right knee consistently from the time he injured the knee during service until the present, that he usually self-treated the pain, and has only sought medical treatment when the knee really started to bother him. Again, the Veteran also testified that his knee surgeon told him that his current knee problem(s) were due to an old injury. VA is obliged to provide an examination when the record contains (1) competent evidence of a current disability (or persistent or recurrent symptoms of a disability), (2) evidence establishing that an event, injury, or disease occurred in service, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service, but (4) there is insufficient competent medical evidence on file to decide the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). On remand, the AOJ should afford the Veteran a VA examination to determine the nature and etiology of his current right knee disability. Hypertension During his May 2015 hearing before the Board, the Veteran testified that his high blood pressure began to show during employment physicals, and that his regular physician also told him his blood pressure was elevated. On remand, the AOJ should make appropriate efforts to obtain all outstanding private treatment records. The Veteran further testified that he believes his current hypertension is related to his herbicide exposure in Vietnam during his active duty service, as well as his service-connected diabetes mellitus, type II, and/or his service-connected coronary artery disease. Upon VA examination in November 2009, the VA examiner opined that the Veteran's current hypertension is not caused or aggravated by his diabetes mellitus. However, a medical opinion has not been obtained as to whether the Veteran's current hypertension may be related to his active duty service, to include herbicide exposure, or whether it may be caused or aggravated by his coronary artery disease alone, or in combination with his diabetes. On remand, the Veteran should be afforded a new VA examination to determine the nature and etiology of his hypertension. Accordingly, the case is REMANDED for the following action: 1. The AOJ should ask the Veteran to identify all private testing and/or treatment related to his bilateral feet, right knee, and/or hypertension. The AOJ should undertake appropriate development to obtain any outstanding private treatment records, to include from Dr. J.D.P. beginning in March 2012; regarding the Veteran's past right knee surgery and treatment, possibly beginning in the 1980s; employment physicals, possibly from Yellow Freight; and from any private primary care physician(s), including regarding the Veteran's high blood pressure. The Veteran's assistance should be requested as needed. All obtained records should be associated with the evidentiary record. The AOJ must perform all necessary follow-up indicated. If any records are not available, the AOJ should make a formal finding of unavailability, advise the Veteran and his representative of the status of his records, and give the Veteran the opportunity to obtain the records on his own. 2. The AOJ should obtain all outstanding VA treatment records, to include records from the Jackson VAMC dated January 2005 to December 2006, all treatment records for the period of September 2009 to April 2011, and records dated July 2013 to present. All obtained records should be associated with the evidentiary record. 3. After #1 and #2 have been completed, and after any records obtained have been associated with the evidentiary record, obtain an addendum opinion from the August 2013 VA skin examiner. If the examiner is no longer available, obtain an opinion from another appropriate examiner to determine the nature and etiology of the Veteran's current skin disability of the bilateral feet. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The addendum opinion must include a notation that this record review took place. It is up to the discretion of the examiner as to whether a new examination is necessary to provide an adequate opinion. After the record review, and examination of the Veteran if deemed necessary by the examiner, the VA examiner is asked to respond to the following inquiries: a) Please identify with specificity all skin disabilities of the bilateral feet which are currently manifested, or which have been manifested at any time since September 2009. The examiner should specifically address the diagnoses of record, including blister-like lesions at the lateral aspects of both feet, keratosis, bullosis diabeticum, and dyshidrosis. See August 2013 VA skin examination report; July 2013 VA skin examination report; April 2012 S.F. statement (treating nurse practitioner); March 2012 Dr. J.D.P. statement; November 2010 VA Limb Preservation Program consultation note; May 2010 VA primary care follow-up note. b) For each diagnosis, is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's current skin disability of the bilateral feet was either incurred in, or is otherwise related to, the Veteran's active duty service? c) For each diagnosis, is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's current skin disability of the bilateral feet was caused by the Veteran's service-connected diabetes mellitus, type II? The examiner should specifically address the Veteran's contention that his blisters occur when his glucose is elevated. See, e.g., August 2013 VA skin examination report; March 2012 VA emergency medicine note. The examiner should also specifically address the April 2012 positive opinion of S.F., the Veteran's treating nurse practitioner with a specialty in diabetes management and wound care, as well as the April 2012 Limb Preservation Clinic note in which S.F. states the Veteran's diabetic bullae will likely reoccur with fluctuations in glycemic control. d) For each diagnosis, is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's current skin disability of the bilateral feet is aggravated by the Veteran's service-connected diabetes mellitus, type II? Aggravation indicates a permanent worsening of the underlying condition as compared to an increase in symptoms. If aggravation is found, the examiner should attempt to quantify the extent of additional disability resulting from the aggravation. The complete rationale for all opinions should be set forth. A discussion of the facts and the medical principles involved will be of considerable assistance to the Board. The examiner is advised that the Veteran is competent to report his symptoms and history. Such reports, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, the examiner must provide an explanation for such rejection. If the examiner cannot provide an opinion, the examiner must confirm that all procurable and assembled data and information was fully considered, and provide a detailed explanation for why an opinion cannot be rendered. 4. After #1 and #2 have been completed, and after any records obtained have been associated with the evidentiary record, the Veteran should be afforded a VA examination with an appropriate examiner to determine the nature and etiology of his current right knee disability. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. The examiner should elicit a full history from the Veteran. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. After the record review, and a thorough examination and interview of the Veteran, the VA examiner should offer his/her opinion with supporting rationale as to the following inquiries: a) Please identify with specificity right knee disabilities which are currently manifested, or which have been manifested at any time since September 2008. The examiner should specifically address the diagnosis of right knee degenerative joint disease in the Veteran's VA treatment records, as well as the Veteran's May 2015 testimony that he previously underwent surgery on his right knee for damage to the inside of the knee, possibly the cartilage. b) For each diagnosis, is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's current right knee disability was either incurred in, or is otherwise related to, the Veteran's active duty service? The examiner should specifically address the May 1969 injury to the Veteran's right knee, as documented in his service treatment records, and noted upon his separation from service. The examiner should also address the Veteran's testimony that he has experienced pain in his right knee consistently from the time he injured the knee during service until the present, that he usually self-treated the pain, and has only sought medical treatment when the knee really started to bother him. See May 2015 videoconference hearing testimony. The complete rationale for all opinions should be set forth. A discussion of the facts and the medical principles involved will be of considerable assistance to the Board. The examiner is advised that the Veteran is competent to report his symptoms and history. Such reports, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, the examiner must provide an explanation for such rejection. If the examiner cannot provide an opinion, the examiner must confirm that all procurable and assembled data and information was fully considered, and provide a detailed explanation for why an opinion cannot be rendered. 5. After #1 and #2 have been completed, and after any records obtained have been associated with the evidentiary record, the Veteran should be afforded a VA examination with an appropriate examiner to determine the nature and etiology of his hypertension. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. The examiner should elicit a full history from the Veteran. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. After the record review, and a thorough examination and interview of the Veteran, the VA examiner should offer his/her opinion with supporting rationale as to the following inquiries: a) Is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's current hypertension was either incurred in, or is otherwise related to, the Veteran's active duty service? The examiner should specifically address the Veteran's contention that his current hypertension was caused by his exposure to herbicides during his service in Vietnam. See May 2015 videoconference hearing testimony. The examiner should note that the Veteran's exposure to herbicides has been established. b) Is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's hypertension had its onset within the first post-service year following discharge from active military service? c) Is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's current hypertension was caused by the Veteran's diabetes mellitus, type II, and/or his coronary artery disease? The examiner should specifically address the Veteran's contention that he feels there is connection between his ischemic heart disease and/or his diabetes that created his hypertension. See May 2015 videoconference hearing testimony. d) Is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's current hypertension is aggravated by the Veteran's diabetes mellitus, type II, and/or his coronary artery disease? Aggravation indicates a permanent worsening of the underlying condition as compared to an increase in symptoms. If aggravation is found, the examiner should attempt to quantify the extent of additional disability resulting from the aggravation. The complete rationale for all opinions should be set forth. A discussion of the facts and the medical principles involved will be of considerable assistance to the Board. The examiner is advised that the Veteran is competent to report his symptoms and history. Such reports, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, the examiner must provide an explanation for such rejection. If the examiner cannot provide an opinion, the examiner must confirm that all procurable and assembled data and information was fully considered, and provide a detailed explanation for why an opinion cannot be rendered. 6. The AOJ should conduct any other development deemed appropriate, and ensure that the VA examiners' reports comply with the Board's remand instructions. 7. After the above development has been completed, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case, and return the case to the Board. (CONTINUED ON NEXT PAGE) 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). 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). _________________________________________________ DAVID L. WIGHT 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).