Citation Nr: 1751291 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 13-26 457 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California THE ISSUES 1. Entitlement to service connection for a left knee disability, to include degenerative joint disease (DJD). 2. Entitlement to service connection for hypertension. 3. Entitlement to an increased (compensable) disability rating for chronic dermatitis. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Laroche, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Army from April 1968 to April 1971. This appeal to the Board of Veterans' Appeals (Board) arose from an April 2010 rating decision in which the RO, inter alia, denied service connection for a left knee disability; denied service connection for hypertension, and continued a 0 percent (noncompensable) rating for service-connected chronic dermatitis. In May 2010, the Veteran filed a notice of disagreement (NOD). In August 2013, the RO issued a statement of the case (SOC), and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in 2013. In November 2016, the Veteran testified during a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ); a transcript of that hearing is of record. While the Veteran previously had a paper claims file, this appeal is now being processed utilizing the Veteran Benefits Management System (VBMS) and Virtual VA paperless, electronic claims processing systems. For reasons expressed below, the claims on appeal are being remanded to the agency of original jurisdiction (AOJ). VA will notify the Veteran when further action, on his part, is required. REMAND The Board's review of the claims file reveals that further development in connection with these claims, prior to appellate s needed to decide the claims on appeal. Pursuant to VA's duty to assist a claimant in the development of facts pertinent to the claim, a medical examination or medical opinion is considered necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent medical evidence of a currently diagnosed disability or persistent or recurrent symptoms of a disability; (2) establishes that the Veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with an established event, injury or disease in service or with another service-connected disability. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (c)(4) (West 2014). I In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) noted that the third prong of 38 C.F.R. § 3.159 (c)(4), requiring that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. As for the Veteran's left knee disability, in his May 2010 NOD, the reported that his left knee started giving him trouble while he was in service. He reported that he worked as a welder and was always up and down on his knees. Additionally, during his November 2016 hearing, the Veteran testified that during his time in Germany in 1970 as a welder, he attempted to pick up some metal when he slipped on some ice and fell on a rock. He testified that his knee was swollen, but he did not go to the dispensary. In May 2009, the Veteran underwent magnetic resonance imaging (MRI) of his knee, resulting in a diagnosis of DJD. Additionally, the Veteran submitted a letter in which his private physician, Dr. G.V., stated that Veteran had severe DJD in his right and left knees. However, the record does not include any medical comment or opinion addressing the etiology of his DJD-specifically, the relationship, if any, between the current disability and the reported in-service injury. As for the Veteran's hypertension, service treatment records (STRs) reflect a shift in blood pressure reading from entrance to separation. The Veteran's blood pressure reading, on examination in April 1968, was recorded as 128 over 70, and on examination in April 1971, his blood pressure reading was recorded as 138 over 84.Medical treatment records reflect a diagnosis of hypertension in 2006. However, the record does not include any medical comment or opinion addressing the etiology of the Veteran's hypertension-to include the relationship, if any, between the current disability, and the noted in-service blood pressure readings. To date, no VA examination has been conducted or medical opinion obtained in conjunction with either service connection claim. As noted as noted above, however, the Veteran has been diagnosed with DJD and hypertension, the Veteran provided statements indicating possible knee injury due to a fall in service (which he is competent to assert), STRs reflect a shift in blood pressure reading, and the Veteran has asserted the existence of a possible medical relationship between his DJD and hypertension, and service. Given this evidence, and the absence of any medical opinion specifically addressing the etiology of either disability the Board finds that the threshold requirements discussed in McLendon are arguably met with respect to each service connection claim, warranting examination and appropriate medical opinion to fulfill VA's duty to assist. Id. Furthermore, as for the Veteran's service-connected chronic dermatitis, during the November 2016 Board hearing, the Veteran testified that he was seen, within the past 30 days of the hearing, at the Merced Community-Based Outpatient Clinic (CBOC) for his skin disability. He reported that his skin disability affected more than five percent of his body, and that there should have been documentation that reflected as such. Additionally, he reported periods of outbreaks when his skin disability would be worse. Considering the Veteran's assertions in conjunction with the time period since the claimed November 2009 examination, the Board finds that the evidence suggests the possible worsening of his disability, warranting re-examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). See also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide a veteran with a thorough and contemporaneous medical examination); VAOPGCPREC 11-95 (1995). Hence, the AOJ should arrange for the Veteran to undergo VA knee, hypertension, and skin examinations, each by an appropriate medical professional. The Veteran is hereby notified that failure to report to any scheduled examination(s), without good cause, may well result in denial of the claim(s)-in particular, his increased rating claim. See 38 C.F.R. § 3.655(a),(b) (2017). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to any scheduled examination(s), obtain and associate with the claims file any copy(ies) of correspondence referencing the date and time of the examination(s)-preferably, any notice(s) of examination-sent to him by the pertinent medical facility. Prior to undertaking action responsive to the above, to ensure that all due process requirements are met, and the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records, to include VA treatment records from the VA Merced CBOC in Merced, California, and VA treatment records from the VA Medical Center (VAMC) in Fresno, California, since August 2013. The AOJ should also obtain and associate with the claims file a missing November 2009 report of VA examination for dermatitis (referenced in an April 2010 rating decision, but not currently of record). Additionally, the AOJ should give the Veteran another opportunity to provide information and/or evidence pertinent to the claims on appeal (particularly as regards any private (non-VA) treatment), explaining that he has a full one-year period for response. See 38 U.S.C.A. § 5103 (b) (West 2014); but see 38 U.S.C.A. § 5103 (b)(3) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2017). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016). However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the claims on appeal. The AOJ's adjudication of the claim for higher rating for skin disability should include consideration of whether staged rating of the disability-assignment of different ratings for distinct periods of time, based on the facts found-is appropriate. Accordingly, these matters are hereby REMANDED for the following action: 1. Obtain from the VA Merced CBOC and the Fresno VAMC all outstanding, pertinent records of evaluation and/or treatment of the Veteran since August 2013. Also obtain a missing November 2009 report of VA examination for dermatitis (referenced in an April 2010 rating decision, but not currently of record). Follow the procedures set forth in 38 C.F.R. § 3.159 (c) (2016) with respect to requesting records from Federal facilities. All records/responses received should be associated with the file. 2. Furnish to the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private (non-VA) treatment records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the matter within the one-year period). 3. If the Veteran responds, obtain all identified records, following the procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the file, arrange for the Veteran to undergo VA knee examination by an appropriate physician. The contents of the entire, electronic claims file (in VBMS and Virtual VA (Legacy Content Manager}), to include a complete copy of this REMAND, must be made available to the designated physician, and the examination report must include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies (to include x-rays) should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should clearly identify all left knee disability(ies) currently present, or present at any time pertinent to the current claim-to include DJD-even if now asymptomatic or resolved. Notably, if the prior assessment of DJD is deemed not substantiated, the examiner should clearly so state, and explain why. Then, for each such diagnosed disability, the physician should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability: (a) had its onset during service, (b) if arthritis, was manifested to a compensable degree within the first post-service year; or (c) is otherwise medically related to the Veteran's military service, to include injury therein. In addressing the above, the physician must consider and discuss all pertinent medical and other objective evidence of record (to include the December 2016 private medical record); as well as all lay evidence of record, to include the Veteran's competent assertions as to experiencing injury, and as to the nature, onset, and continuity of symptoms. If lay assertions in any regard are discounted, the physician should clearly so state, and explain why. All examination findings/testing results (if any), along with complete, clearly-stated rationale for the conclusions reached, must be provided. 5. After all records and/or responses received from each contacted entity have been associated with the file, arrange for the Veteran to undergo VA hypertension examination by an appropriate physician. The contents of the entire, electronic claims file (in VBMS and Virtual VA (Legacy Content Manager)), to include a complete copy of this REMAND, must be made available to the designated physician, and the examination report must 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 requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail. Following review of the record, the physician should render an opinion, based on sound medical principles, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's hypertension (a) had its onset during service; (b) was manifested to a compensable degree within the first post-service year; or (c) is otherwise medically related to service, to include blood pressure readings documented therein.. In addressing the above, the physician must consider and discuss all relevant medical and other objective evidence-to particularly include the Veteran's STRs and documented report of a history of hypertension, as well as all lay assertions-to include competent assertions as to the nature, onset and continuity of symptoms.. If lay assertions in any regard are discounted, the physician should clearly so state, and explain why. All examination findings/testing results, to include complete, clearly-stated rationale for the conclusions reached, must be provided. 6. Also after all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo a VA skin examination, by an appropriate medical professional , for evaluation of his service-connected dermatitis. To the extent possible, VA should attempt to schedule the examination during an active stage of the Veteran's disability, particularly since skin conditions by their very nature tend to have active versus inactive stages. The contents of the entire, electronic claims file (in VBMS and Virtual VA (Legacy Content Manager), to include a complete copy of this REMAND, must be made available to the designated physician, and the examination report must 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 requesting mental health professional prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should specify all symptoms and functional impairment associated with the skin. The nature and severity of such symptomatology should be described in detail. Following examination, the examiner should render specific clinical findings as to the percentage of the total area of the body affected by the service-connected disability, as well as the exposed areas affected. If the examination must take place during an inactive stage of disability, separate percentages based on a review of the record and the Veteran's description of his symptoms during a period of exacerbation should be provided. The examiner should also indicate whether the Veteran's disability requires treatment with systemic therapy such as corticosteroids or other immunosuppressive drugs and should identify the total duration of such required treatment during the relevant time period. Based on a review of all pertinent evidence and lay assertions, the examiner should also indicate whether, at any point since April 5, 2008, the Veteran's service-connected skin disability has increased in severity, and, if so, the approximate date(s) of any such change(s), and the extent of severity of disability at each stage. All examination findings/testing results (if any), along with complete, clearly-stated rationale for the conclusions reached, must be provided. 7. If the Veteran fails to report to any scheduled examination(s), associate with the claims file (a) copy(ies) of any correspondence referencing the date and time of the examination(s)-preferably, the notice(s) of examination-sent to him by the pertinent medical facility. 8. To help avoid future remand, 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, 271 (1998). 9. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claims on appeal. If the Veteran fails, without good cause, to report to the examination scheduled for evaluation of his dermatitis, in adjudicating the increased rating skin claim, apply the provisions of 38 C.F.R. § 3.655(b), as appropriate. Otherwise, adjudicate each claim on appeal in light of all pertinent evidence (to particularly include that added to the VBMS and/or /Virtual VA (Legacy Content Manager) file(s) since the last adjudication), and all legal authority (to include, with respect to the higher rating claim, consideration of whether staged rating of the disability is appropriate). 10. If any benefit(s) sought on appeal remain(s) denied, furnish to the Veteran and his representative a supplemental SOC that includes clear reasons and bases for all determinations, and afford them an appropriate time period for response. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2017).