Citation Nr: 1754744 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 14-04 774 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II, to include as secondary to right and left foot disabilities. 2. Entitlement to service connection for hypertension, to include as secondary to service-connected right and left foot disabilities. 3. Entitlement to an increased rating greater than 20 percent for residuals of a left foot bunionectomy, metatarsal cuneiform fusion, and second metatarsal osteotomy with degenerative arthritis. 4. Entitlement to a compensable rating for right foot hallux valgus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Katz, Counsel INTRODUCTION The Veteran served on active duty from April 1973 to January 1981. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in May 2017. A transcript of that hearing is associated with the claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Initially, the Board observes that additional evidence has been added to the Veteran's claims file since the RO last considered the Veteran's claims. The additional evidence includes VA treatment records. Although an automatic waiver for evidence submitted by the Veteran applies in this case, VA does not currently interpret section 7105(e) as extending to evidence that was not submitted by the Veteran, such as VA-generated evidence including VA treatment records and examination reports. Thus additional VA treatment records pertinent to the Veteran's claims have been added to the claims file and the Veteran has not submitted a waiver of such evidence. See 38 U.S.C.A. § 7105(e) (West 2014); 38 C.F.R. § 20.1304 (2017). Because the Board is remanding the claims for other development, there would be no benefit to soliciting a waiver from the Veteran's representative, and these records should be considered by the RO when re-adjudicating the claims on remand. Additional development is required with regard to the Veteran's claims on appeal. During his May 2017 hearing before the Board, the Veteran raised the theory of secondary service connection for hypertension and diabetes mellitus, type II, arguing that his service-connected right and left foot disabilities prevented him from maintaining a reasonable fitness level, which caused or contributed to the development of his hypertension and diabetes mellitus, type II. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) (West 2014); 38 C.F.R. § 3.159(c)(4) (2017). The threshold for determining a possibility of a nexus to service is a low one. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Service treatment records reveal that the Veteran's weight problems began during service, not long after his left foot problems began. In that regard, the service treatment records show that the Veteran's weight was 142 pounds at service entrance in April 1973 and 205 pounds at service discharge in 1981, reflecting a weight gain of 63 pounds. Sporadic elevated blood pressure readings are also shown towards the end of the Veteran's active duty service. The service treatment records also show that the Veteran's left foot problems began in approximately 1975, resulting in left foot surgeries in April 1978, September 1978, and April 1980. The Veteran's increased weight and elevated blood pressure readings during service may merely be coincidental, but it also gives rise to a reasonable possibility of a causative relationship. Examination is therefore required. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon, 20 Vet. App. 79 (2006). With regard to the Veteran's claims for increased ratings for right and left foot disabilities, the Veteran testified during his May 2017 hearing before the Board that these disabilities have worsened in severity since his last VA examination in November 2013. Because the November 2013 VA examination is now approximately four years old and the evidence suggests that it may not reflect the current severity of the Veteran's disabilities, a new VA examination is warranted. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); see also Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (finding that the Board should have ordered a contemporaneous examination of veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating); see also 38 C.F.R. § 3.326(a) (2017). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to assess the etiology of his diabetes mellitus, type II, and his hypertension. The Veteran's claims file, all electronic records, and a copy of this remand must be reviewed by the examiner, and the examiner must state that this evidence was reviewed in the examination report. All pertinent symptomatology and findings must be reported in detail. All indicated tests and studies must be accomplished. Based upon a complete review of the evidence of record, to include the Veteran's testimony and lay statements, the VA examiner must answer the following: a) Is it at least as likely as not (i.e., a 50 percent probability or more) that the Veteran's diabetes mellitus, type II, and/or hypertension was incurred in or caused by his active duty service? b) Is it at least as likely as not that the Veteran's diabetes mellitus, type II, and/or hypertension was caused or aggravated by his service-connected right or left foot disabilities? The examiner should discuss whether the Veteran's right or left foot disabilities caused or aggravated beyond the natural progression the Veteran's weight gain to the point of obesity, and if so, whether such then caused or aggravated his diagnosed hypertension and/or diabetes mellitus, type II. Aggravation is defined as a permanent worsening beyond the natural progression of the disease. A complete rationale for all opinions must be provided. The examiner is advised that the Veteran is competent to report observable symptomatology, and that the Veteran's lay statements should be presumed to be credible for the purposes of this examination only. 2. Provide the Veteran with a new VA examination to assess the current severity of his right and left foot disabilities. The claims file and a copy of this Remand must be provided to and reviewed by the examiner. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The examiner must provide accurate and fully descriptive assessments of all symptoms and must comment upon the frequency and severity of the Veteran's symptoms in accordance with VA rating criteria. The examination report should also address any functional loss caused by pain, fatigability, incoordination, weakness, or other symptoms of the right and left foot disabilities. The assessment should include a finding as to whether the overall severity of the disability of each foot is moderate, moderately severe, or severe. A complete rationale for any opinion advanced must be provided. 3. Notify the Veteran that he must report for the examinations and cooperate in the development of the claims. Failure to report for a VA examination without good cause may result in denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2017). 4. After completing the above development, and any other development deemed necessary, readjudicate the issues on appeal taking into consideration any newly acquired evidence, to specifically include all VA treatment records associated with the claims file since the December 2013 statement of the case. If any benefit sought on appeal remains denied, provide an additional supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran and his representative have had an adequate opportunity to respond. The appellant 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). _________________________________________________ MICHAEL MARTIN 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) (2016).