Citation Nr: 1754072 Decision Date: 11/28/17 Archive Date: 12/07/17 DOCKET NO. 12-01 904 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for a left knee disability. 2. Entitlement to an initial disability rating in excess of 10 percent for a right knee disability. 3. Entitlement to service connection for residuals of a traumatic brain injury, to include headaches, memory impairment, poor sleep, head pain, and difficulty focusing. 4. Entitlement to service connection for bilateral hearing loss disability. 5. Entitlement to service connection for a skin disability of the feet, claimed as tinea pedis, to include as secondary to service-connected eczema. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Delhauer, Associate Counsel INTRODUCTION The Veteran served on active duty from July 2001 to October 2009. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the evidentiary record. In his June 2005 claim, the Veteran stated he was seeking service connection for tinea pedis. However, the Veteran's lay statements have included a general description of skin symptoms on his feet, and his VA treatment records have indicated an eczema-like rash on his feet. Accordingly, the Board has characterized the issue as entitlement to service connection for a skin disability of the feet 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). At the August 2016 hearing before the Board, the Veteran testified that he believed he had appealed the issue of entitlement to service connection for pes planus. However, on the January 2012 VA Form 9 the Veteran specifically listed the issue of service connection for tinea pedis as one of the issues being appealed from the November 2011 statement of the case, and did not include the issue of service connection for pes planus. Accordingly, the issue of entitlement to service connection for pes planus is not currently before the Board. In an April 14, 2016 statement of the case, the RO denied entitlement to service connection for a right shoulder condition. Although a VA Form 646 statement from the Veteran's representative addressed the issue of entitlement to service connection for a bilateral shoulder condition, this form was completed on April 4, 2016, prior to the issuance of the statement of the case. Accordingly, the Board finds the representative's statement cannot constitute a timely substantive appeal. Further, no timely substantive appeal was received in response to the April 2016 statement of the case. 38 C.F.R. §§ 20.202, 20.302 (2017). Accordingly, the Board finds an appeal as to the issue of service connection for a right shoulder disability has not been perfected, and therefore that issue is not 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 The Board finds there are outstanding VA treatment records. The AOJ indicated in the December 2012 supplemental statement of the case that VA treatment records dated up to November 2012 had been reviewed. However, the evidentiary record only contains complete VA treatment records dated up to January 2010, and some VA treatment records dated between July and September 2011. On remand, the AOJ should obtain all outstanding VA treatment records. In a March 2015 statement, the Veteran's mother indicated he was discharged from the Reserves because he could not meet the required physical training standards due in part to his bilateral knee disabilities. On remand, the AOJ should undertake appropriate development to obtain any outstanding Reserve service treatment records. During the August 2016 hearing before the Board, the Veteran testified that he experiences locking and instability of both knees which has resulted in falls, and that his left knee cap will pop out of place. These symptoms were not present upon his December 2009 VA examination. The Veteran also testified his job duties have been changed by his employer due to his knee symptoms. Where a veteran asserts that a disability has worsened since his last VA examination, and the last examination is too remote to constitute a contemporaneous examination, a new examination is required. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Green v. Derwinski, 1 Vet. App. 121 (1991). On remand, the AOJ should afford the Veteran a new VA examination to determine the current severity and manifestations of his service-connected bilateral knee disabilities. VA conducted a special review of traumatic brain injury (TBI) examinations completed between 2007 and 2015 in support of disability compensation claims for TBI. This review revealed a number of initial TBI examinations that were not conducted by a physiatrist, psychiatrist, neurologist, or neurosurgeon as required by VA's Adjudication Procedures Manual. See M21-1, III.iv.3.D.2.j. As a result, in May 2016 VA's Secretary granted equitable relief that permits VA to provide new initial TBI examinations to impacted claimants. This appeal includes a TBI issue that is covered by the Secretary's grant of equitable relief, and the Veteran has requested reprocessing of this appeal under VA's special TBI review. Accordingly, the Board is remanding the issue in order to schedule the Veteran for a new examination. See 38 U.S.C. § 7107(f)(2) (2012). During the December 2009 VA audiology examination, the Veteran's speech recognition thresholds were close to meeting VA's criteria for impaired hearing to be considered to be a disability. See 38 C.F.R. § 3.385. The Veteran contends that he currently experiences difficulty in understanding speech due to his hearing loss, and testified that he has to look people in the face and they need to talk louder so he can understand their speech. The Veteran also testified that he has not undergone an audiological examination since the prior VA examination. Accordingly, on remand the AOJ should afford the Veteran a new VA examination to determine the nature and etiology of any current bilateral hearing loss disability. The December 2009 VA examination reports do not include any findings regarding a skin disability of the Veteran's feet. However, the Veteran submitted a photograph of the bottom of his right foot, and stated a plantar wart surgery in service left a hole. Further, during the appeal period the Veteran reported skin symptoms on his feet including eczema breakouts and discoloration, itching, cracking, and bleeding. The Veteran's VA treatment records also indicate problems with an eczema-like rash on his hands and feet. See, e.g., September 2011 VA primary care outpatient note. Accordingly, on remand the AOJ should afford the Veteran a new VA examination to determine the nature and etiology of any current skin disability of the feet, to include any relationship to his service-connected eczema. Further, because the theory of secondary service connection has been raised by the record, the AOJ should provide the Veteran with VCAA notice regarding secondary service connection claims. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with a new VCAA notice, including notice regarding secondary service connection claims. 2. The AOJ should undertake appropriate development to obtain any outstanding service treatment records from the Veteran's Reserve service, particularly regarding his bilateral knee disabilities and any difficulties completing required physical training standards. All records requests and responses received should be documented in the evidentiary record, and efforts to obtain these records must continue until a negative response is received or it is determined that additional development efforts would be futile. 3. The AOJ should obtain all outstanding VA treatment records, to include full VA treatment records from January 2010 to the present. All obtained records should be associated with the evidentiary record. 4. After #2 and #3 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 current severity of his service-connected knee disabilities. 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. A complete history should be elicited directly from the Veteran, and any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. The VA examiner should address the Veteran's contention that he experiences locking and instability of both knees which has resulted in falls, and that his left knee cap will pop out of place. 5. After #2 and # 3 have been completed, and after any records obtained have been associated with the evidentiary record, schedule the Veteran for a TBI examination to be conducted by one of the four designated specialists (physiatrist, psychiatrist, neurologist, or neurosurgeon), as well as any other actions felt appropriate by the AOJ in conjunction with the Secretary's grant of equitable relief. The TBI examiner should address the Veteran's contention that his current TBI residuals include headaches, memory impairment, poor sleep, head pain, and difficulty focusing. The examiner should also specifically address the February 2013 VA initial PTSD examination report indicating headache as a residual of the Veteran's TBI. 6. After #2 and #3 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 any bilateral hearing loss 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) Is it at least as likely as not (i.e. probability of 50 percent or greater) that any current sensorineural hearing loss disability manifested within a year of the Veteran's separation from active duty service? b) Is it at least as likely as not (i.e. probability of 50 percent or greater) that any current hearing loss disability 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 he was exposed to loud noise while working on the flight line and during deployments in service. The examiner should also specifically address the Veteran's contention that his hearing impairment is in general conversation, and he has to constantly ask people to repeat themselves. The complete rationale for all opinions should be set forth. 7. After #1 through #3 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 any current skin disability of the feet. 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 all skin disabilities of the feet which are currently manifested, or which have been manifested at any time since October 2009. The examiner should specifically address the Veteran's reports that his feet get discolored, itch, crack, and bleed, and that he has a hole on the bottom of his right foot. The examiner should also address the notations in the Veteran's VA treatment records of problems with an eczema-like rash on his feet. 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 feet was either incurred in, or is otherwise related to, the Veteran's active duty service? The examiner should specifically address the notations in the Veteran's service treatment records of treatment for tinea pedis and plantar warts. The examiner should specifically address the Veteran's contention that tinea pedis started during his deployment in Iraq, and that a plantar wart surgery in service left a hole in the bottom of his right foot. 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 feet was caused by his service-connected eczema? 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 feet is aggravated by his service-connected eczema? Aggravation indicates a worsening of the underlying condition as compared to an increase in symptoms. If aggravation is found, the examiner should attempt to identify the baseline level of the disability that existed before aggravation by the service-connected disability occurred. The complete rationale for all opinions should be set forth. 8. 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. 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). These 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. §§ 5109B, 7112 (2012). _________________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).