Citation Nr: 1759952	
Decision Date: 12/22/17    Archive Date: 01/02/18

DOCKET NO.  10-11 701	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUES

1.  Entitlement to service connection for a sleep disorder, to include as secondary to posttraumatic stress disorder (PTSD).

2.  Entitlement to service connection for a neck disorder.

3.  Entitlement to service connection for a heart disorder, to include vascular problems and to include as secondary to PTSD and cold injury residuals.

4.  Entitlement to service connection for a stroke, to include as secondary to a heart disorder.

5.  Entitlement to a disability rating for cold injury residuals in the right lower extremity in excess of 10 percent prior to November 21, 2012 and in excess of 20 percent thereafter.

6.  Entitlement to a disability rating for cold injury residuals in the left lower extremity in excess of 10 percent prior to November 21, 2012 and in excess of 20 percent thereafter.

7.  Entitlement to a compensable disability rating for forehead disfigurement by scars.

8.  Entitlement to a disability rating in excess of 10 percent for a painful scar.

9.  Entitlement to a disability rating in excess of 30 percent for PTSD.

10.  Entitlement to a disability rating in excess of 10 percent for unilateral glaucoma in the right eye.


REPRESENTATION

Appellant represented by:	National Association of County Veterans Service Officers


ATTORNEY FOR THE BOARD

M. Shouman, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from March 1951 to March 1954. 

These matters are before the Board of Veterans' Appeals (Board) on appeal from September 2008, November 2009, and April 2010 rating decisions of a U.S. Department of Veterans Affairs (VA) Regional Office (RO).  The September 2008 decision denied service connection for a head injury to include headaches, memory loss, and strokes; assigned a compensable evaluation of 10 percent for a forehead scar under diagnostic code 7800 effective December 27, 2007; and continued the evaluation of unilateral glaucoma in the right eye at 10 percent disabling.  The November 2009 decision continued the denial of service connection for a head injury to include headaches, memory loss, and strokes; continued the evaluation of unilateral glaucoma in the right eye at 10 percent disabling; and denied service connection for a sleep disorder and for a neck disorder.  The April 2010 decision denied service connection for a heart condition, to include vascular problems, because the evidence submitted was not new and material; continued the evaluation of PTSD at 30 percent disabling, and continued the evaluation of cold injury residuals at 10 percent disabling for each lower extremity.

In a March 2013 rating decision, the RO increased the Veteran's cold injury residual disability ratings to 20 percent for each lower extremity, effective November 21, 2012.

VA received requests for a Board hearing by the appellant in March 2010, June 2010, and March 2012.  The appellant was scheduled to appear before the Board in a June 2014 videoconference hearing, and he was informed of the scheduled hearing through a letter sent in November 2013.  The appellant failed to appear for the scheduled Board hearing, and he did not file a new hearing motion.  As such, the Board deems the hearing request withdrawn.

The Board considered the appeal in September 2014.  At that time, the claim of service connection for a heart disorder was reopened, and then all the above claims were remanded for additional development.

The Board considered the appeal again in July 2015.  At that time, the claims were again remanded for additional development.  With respect to the issues not being remanded in the instant decision, the Board finds there has been substantial compliance with its July 2015 remand directives.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no violation of Stegall v. West, 11 Vet. App. 268 (1998) when the examiner made the ultimate determination required by the Board's remand) aff'd, 287 F.3d 1377 (2002).  For example, in furtherance of the Board's remand instructions, the agency of original jurisdiction (AOJ) attempted to procure photographs taken in conjunction with VA examinations, rescheduled the Veteran for VA examinations, and afforded the appellant's representative the opportunity to review the claims file and present arguments.  The claim was then readjudicated in September 2017.

Following the July 2015 Board remand, the AOJ, in a March 2017 rating decision, granted service connection for erectile dysfunction and for residuals of traumatic brain injury, to include headaches and memory loss.  

The award of service connection for erectile dysfunction and for residuals of traumatic brain injury, to include headaches and memory loss but not stroke, constitute full grants of the service connection benefits sought, and those issues are no longer before the Board.  See Grantham v. Brown, 114 F.3d 1156, 1158-59 (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues, such as the compensation level assigned for the disability and the effective date).

During the pendency of the appeal, in a September 2017 rating decision, the RO assigned an evaluation of 10 percent for painful forehead scar under diagnostic code 7804 and assigned a noncompensable evaluation for forehead scar under diagnostic code 7800.  Both evaluations are effective December 27, 2007.

The issues on appeal have been rephrased to better reflect the state of the record.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).

The issues of entitlement to service connection for a heart disorder, entitlement to service connection for a stroke, entitlement to a disability rating in excess of 30 percent for PTSD, and entitlement to a disability rating in excess of 10 percent for unilateral glaucoma in the right eye are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.


FINDINGS OF FACT

1.  The competent and probative evidence does not show a current sleep disorder.

2.  The competent and probative evidence does not show a current neck disorder.

3.  The competent and probative evidence fails to show that the Veteran had arthralgia or other pain, numbness, or cold sensitivity in the right foot prior to November 21, 2012.

4.  The competent and probative evidence shows that from November 21, 2012 the Veteran has had numbness in the right foot, but no tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, or X-ray abnormalities (osteoporosis, subarticular punched out lesions, or osteoarthritis)

5.  The competent and probative evidence fails to show that the Veteran had arthralgia or other pain, numbness, or cold sensitivity in the left foot prior to November 21, 2012.

6.  The competent and probative evidence shows that from November 21, 2012 the Veteran has had numbness in the left foot, but no tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, or X-ray abnormalities (osteoporosis, subarticular punched out lesions, or osteoarthritis)

7.  The competent and probative evidence shows at least one scar on the forehead, but without no characteristics of disfigurement and no gross distortion or asymmetry of facial features.

8.  The Veteran's superficial, painful scar is currently rated as 10 percent disabling, the highest schedular rating for that disability allowed under diagnostic code 7804 of 38 C.F.R. § 4.118 (2008).



CONCLUSIONS OF LAW

1.  The criteria for service connection for a sleep disorder have not been met.  38 U.S.C. § 1110; 38 C.F.R. § 3.303.

2.  The criteria for service connection for a neck disorder have not been met.  38 U.S.C. § 1110; 38 C.F.R. § 3.303.

3.  The criteria for a schedular rating in excess of 10 percent for cold injury residuals in the right lower extremity prior to November 21, 2012 have not been met.  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1-4.3, 4.6-4.7, 4.9, 4.14, 4.21, 4.104 (DC 7122).

4.  The criteria for a schedular rating in excess of 20 percent for cold injury residuals in the right lower extremity from November 21, 2012 have not been met.  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1-4.3, 4.6-4.7, 4.9, 4.14, 4.21, 4.104 (DC 7122).

5.  The criteria for a schedular rating in excess of 10 percent for cold injury residuals in the left lower extremity prior to November 21, 2012 have not been met.  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1-4.3, 4.6-4.7, 4.9, 4.14, 4.21, 4.104 (DC 7122).

6.  The criteria for a schedular rating in excess of 20 percent for cold injury residuals in the left lower extremity from November 21, 2012 have not been met.  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1-4.3, 4.6-4.7, 4.9, 4.14, 4.21, 4.104 (DC 7122).

7.  The criteria for a compensable schedular rating for a disfiguring scar on the forehead have been met.  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1-4.3, 4.6-4.7, 4.9, 4.10, 4.14, 4.20, 4.21, 4.31, 4.118 (DC 7800) (2008).

8.  The criteria for a schedular rating in excess of 10 percent for a superficial, painful scar have not been met.  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1-4.3, 4.6-4.7, 4.9, 4.10, 4.14, 4.20, 4.21, 4.118 (DC 7804) (2008).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The appellant contends that he is entitled to service connection for a sleep disorder and for a neck disorder.  He also contends that he is entitled to a disability rating for cold injury residuals in each lower extremity in excess of 10 percent prior to November 21, 2012 and in excess of 20 percent thereafter, and increased disability ratings for forehead scars based on disfigurement and pain.  After reviewing the record, the Board finds that the weight of the competent and probative evidence is against finding that the Veteran has a current sleep disorder or neck disorder at any time during the rating period on appeal.  The Board also finds that increased disability ratings for cold injury residuals in both lower extremities are not warranted.  Moreover, the Board finds that a compensable disability rating for forehead disfigurement by scars is not warranted.  Furthermore, the Board finds that a disability rating in excess of 10 percent for a painful scar on the forehead is not warranted.  The reasons and bases for these decisions will be explained below.

The Board has considered the appealed issues-other than those being remanded-and decided on the matters based on the pertinent evidence.  Neither the appellant nor the representative has raised any issues with respect to VA's duties, and no other issues been reasonably raised by the record with respect to VA's duties.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).  Given the above, the Board will proceed to the merits of this appeal.

I.  Service Connection:  Sleep Disorder and Neck Disorder

A.  Legal Principles

Service connection will be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a) (2017).  To establish entitlement to service-connected compensation benefits, a Veteran must show "'(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service'-the so-called 'nexus' requirement."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).

Service connection cannot be established without a current disability.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); 38 C.F.R. § 3.303.  The current disability requirement is satisfied when a claimant "has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim," McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), or "when the record contains a recent diagnosis of disability prior to . . . filing a claim for benefits based on that disability," Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013).  

The Board must consider all the evidence of record and make appropriate competence, credibility, and weight determinations.  See Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary of VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

The Veteran is competent to report symptoms and experiences observable by his senses.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a).

B.  Analysis

The Board finds that the Veteran does not meet the requirements for service connection a sleep disorder or a neck disorder because the weight of the evidence is against a finding of a current sleep disorder or neck disorder.

With respect to the issue of entitlement to service connection for a sleep disorder, the Veteran has contended that his PTSD is causing insomnia.  02/25/2011, VA 21-4138 - Statement in Support of Claim.  An April 2010 VA treatment report indicates that the Veteran has exhibited trouble sleeping as a PTSD symptom.  04/01/2010, VA Examination, at 2.  Nevertheless, despite receiving treatment for sleep problems, a February 2017 VA examination noted the Veteran has no sleep disturbances, and the VA examiner did not check any listed disability: insomnia, hypersomnolence and/or daytime "sleep attacks," persistent daytime hypersomnolence, sleep apnea requiring the use of breathing assistance device such as continuous airway pressure machine, sleep apnea causing chronic respiratory failure with carbon dioxide retention or cor pulmonale, or sleep apnea requiring tracheostomy.  03/21/2017, C & P Examination (DBQ NEURO - Central Nervous System), at 5.

With respect to the issue of entitlement to service connection for a neck disability, a February 2017 VA examination found that the Veteran does not have a current diagnosis associated with the neck.  03/21/2017, C & P Examination (DBQ MUSC Neck (cervical spine)), at 2.  Similarly, VA medical records do not reflect treatment for a neck disorder.

Given the foregoing, the Board finds that the preponderance of the evidence is against a finding of any current sleep disorder or neck disorder.  As such, an award of service connection is not warranted in this case for those conditions.

II.  Increased Ratings: Cold Injury Residuals and Scar

A.  Legal Principles

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities.  38 C.F.R. pt. 4.  The percentage ratings are based on the average earning capacity impairment as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.

If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates criteria for that rating; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary of VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107(b); 38 C.F.R. § 4.3.

In determining the propriety of the initial disability rating assigned after a grant of service connection, the evidence since the effective date of the award must be evaluated and staged ratings must be considered.  Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct periods during the course of the appeal.  Fenderson v. West, 12 Vet. App. 119, 126-27 (1999).

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition.  Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14.

As noted above, the Veteran is competent to report symptoms observable by his senses.  See Jandreau, 492 F.3d at 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a).

B.  Cold Injury Residuals

1.  Rating criteria.

The Veteran is presently service connected for cold injury residuals in each of his lower extremities.  His cold injury residuals have been evaluated under 38 C.F.R. § 4.104, Diagnostic Code 7122.  For each lower extremity, a 10 percent rating is in effect prior to November 21, 2012, and a 20 percent rating is in effect thereafter.

Pursuant to diagnostic code 7122 of 38 C.F.R. § 4.104, a 10 percent disability rating is warranted for, in affected parts, arthralgia or other pain, numbness, or cold sensitivity.  A 20 percent disability rating is warranted for, in affected parts, arthralgia or other pain, numbness, or cold sensitivity plus tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, or X-ray abnormalities (osteoporosis, subarticular punched out lesions, or osteoarthritis).  A 30 percent disability rating is warranted for, in affected parts, arthralgia or other pain, numbness, or cold sensitivity plus two or more of the following: tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, X-ray abnormalities (osteoporosis, subarticular punched out lesions, or osteoarthritis).  

2.  Analysis.

In April 2010, the Veteran underwent a VA examination with regard to cold injury residuals of the feet.  When asked what symptoms had that constituted residuals of cold feet, he reported corns and calluses of the feet, and the examiner noted that they are not cold injury residuals.  The Veteran also reported no difficulty living in a temperate climate when the weather was cold.  The VA examiner found the feet to be normally warm and with normal skin on the dorsum of the feet.  The examiner found no residuals of cold injury of the bilateral feet.  04/01/2010, VA Examination, at 7.

A November 2012 VA examination noted that the Veteran has cold sensitivity, numbness, and hyperhidrosis of both feet.  The examiner indicated that the Veteran ambulated with a cane for a general arthritic condition.  The Veteran had no scars and no skin breakdown of ulcerations of either foot.  11/21/2012, VA Examination, at 1.

A February 2017 VA examination reflects numbness and impaired sensation in the both feet.  The VA examiner did not place a check mark indicating the presence of any of the following symptoms: arthralgia or other pain, cold sensitivity, tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis and X-ray abnormalities (osteoarthritis, osteoporosis, subarticular punched out lesions).  The Veteran used a cane due to his leg numbness.  03/21/2017, C & P Examination (Cold Injury Residuals).

Based on the objective record and lay assertions of the Veteran, the evidence of record does not support a finding that the cold injury residuals of either foot are manifested by tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, or X-ray abnormalities (osteoporosis, subarticular punched out lesions, or osteoarthritis) prior to November 21, 2012. Accordingly, a 20 percent rating is not warranted for either foot for the period prior to November 21, 2012.  Moreover, the evidence of record does not support a finding that the cold injury residuals of either foot are manifested by at least two of the aforementioned manifestations.  Accordingly, a 30 percent rating is not warranted for either foot for the period from November 21, 2012.

B.  Scars

1.  Rating criteria.

The Veteran is presently service connected for scarring on his forehead.  The record reflects that he had been evaluated under diagnostic codes 7800 and 7804 of 38 C.F.R. § 4.118.  Based on the most recebt rating decision code sheet, dated September 2017, a 10 percent rating is in effect for painful scar under diagnostic code 7804 from December 2007 and a noncompensable rating is in effect under for disfigurement under diagnostic code 7800 since 1998.

The Veteran's scar was rated by VA before October 23, 2008 under 38 C.F.R. § 4.118 (2008).  The Veteran did not request a review under the current version of the diagnostic codes.  As such, diagnostic codes 7800 and 7804 of 38 C.F.R. § 4.118 (2008) apply here.  Schedule for Rating Disabilities-Evaluation of Scars, 73 Fed. Reg. 54,708 (Sept. 23, 2008) (codified at 38 C.F.R. pt. 4), amended by Schedule for Rating Disabilities-Evaluation of Scars-Correction, 77 Fed. Reg. 2910 (Jan. 20, 2012).

Pursuant to diagnostic code 7800 of 38 C.F.R. § 4.118 (2008), a 10 percent disability rating is assigned if there is disfigurement of the head, face, or neck with one characteristic of disfigurement; and a schedular rating of 20 percent is assigned if two or three characteristics of disfigurement are accompanied with "visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement."  The characteristics of disfigurement are listed under note (1) of diagnostic code 7800 of 38 C.F.R. § 4.118 (2008) as follows:

Scar 5 or more inches (13 or more centimeters) in length.
Scar at least one-quarter inch (0.6 centimeter) wide at widest part.
Surface contour of scar elevated or depressed on palpation.
Scar adherent to underlying tissue.
Skin hypo-or hyper-pigmented in an area exceeding six square inches (39 square centimeters).
Skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 square centimeters).
Underlying soft tissue missing in an area exceeding six square inches (39 square centimeters).
Skin indurated and inflexible in an area exceeding six square inches (square centimeters).

Pursuant to diagnostic code 7804 of 38 C.F.R. § 4.118 (2008), a maximum schedular rating of 10 percent is assigned for a superficial scar that is painful on examination.

2.  Analysis.

With respect to the issue of entitlement to service connection for an increased disability rating for a painful scar under Diagnostic Code 7804 of 38 C.F.R. § 4.118 (2008), the Veteran is already evaluated at 10 percent disabling-the maximum schedular rating available for a painful, superficial scar.  Thus, there is no legal basis upon which to award an increased rating for a painful, superficial scar on a schedular basis, and the Veteran's appeal is denied.  Therefore, the Board finds no need to remand for a new VA examination.

The remainder of the analysis pertains to whether an additional compensable disability rating is warranted under Diagnostic Code 7800 of 38 C.F.R. § 4.118 (2008).

In August 2008, the Veteran underwent a VA examination with regard to his scars.  The examiner found a depressed, 1/2-inch scar in the center of the forehead.  It was tender to palpation and not adherent to underlying tissue.  The texture was slightly firmer than the surrounding tissue.  There was no ulceration or breakdown of skin and no underlying tissue loss.  There was no edema, inflammation, or keloid formation.  The color of the scar was paler compared to the surrounding skin.  The scar was cosmetically obvious but not disfiguring.  08/17/2008, VA Examination, at 2.

The examiner also found an approximately 1/8-inch diagonal scar laterally to the right eye orbit that was joined by an approximately 1-inch vertical scar.  Both scars were almost imperceptible and could not be seen under ordinary circumstances; a spotlight was necessary in order to see them.  They were nontender and not adherent to underlying tissue.  There was no inflammation, edema, or keloid formation.  The scars could not be seen under usual lighting circumstances, therefore they were not disfiguring.  There was no limitation of function by those two scars.  Id.

A July 2010 VA examination noted the Veteran's complaints of pain and tenderness; there was no skin breakdown at the area of a scar site.  The examiner found the location of the scar as midway between the medial eyebrow limits and rising from that point slanting at a 45-degree angle to the right eyebrow.  It measured one inch by 1/8 inch and it was 0.125 square inches.  There was pain and tenderness at the site.  There was no skin breakdown.  The scar was superficial and not deep.  There was no limitation of motion or function.  There was no inflammation, edema, or keloid formation.  No disfiguration was noted.  There was no adherence to underlying tissue.  The scar was neither elevated nor depressed.  The texture was smooth.  It was minimally hypopigmented.  There was no induration or soft tissue loss.  07/12/2010, VA Examination.

At a November 2012 VA examination, the Veteran stated that his scar was sometimes painful.  The scar was not unstable and there was no loss of skin covering on the scar.  The scar was over the medial forehead.  It was a well-healed, linear scar. It measured 1.2 by 0.1 centimeter.  There was no elevation, depression, or adherence to underlying tissue or missing underlying soft tissue with the scar.  There was no abnormal pigmentation or texture of the head, face, or neck.  There was no gross distortion or asymmetry of facial feature.  There was no limitation of function.  11/21/2012, VA Examination, at 3.

A February 10, 2017 VA examination shows a forehead scar that measures 1.5 by 0.2 centimeter that is neither painful nor unstable.  There were no scars tender to palpation.  There is no abnormal pigmentation or texture, hypo- or hyper-pigmented areas, abnormal texture; underlying soft tissue; or indurated or inflexible skin.  03/21/2017, C & P Examination.

Based on the objective record and lay assertions of the Veteran, the evidence of record failes to support a finding of one disfiguring scar on the forehead or a finding of gross distortion or asymmetry of facial features.  Accordingly, 10 and 20 percent ratings are warranted for scar disfigurement under Diagnostic Code 7800 of 38 C.F.R. § 4.118 (2008).  A zero percent evaluation is thus assigned because the requirements for a compensable evaluation have not been met.  38 C.F.R. § 4.31.

The Veteran's scar disfigurement is not overlapping or duplicative of the pain in the same scar.  As such, an award of separate disability ratings under diagnostic codes 7800 and 7804 of 38 C.F.R. § 4.118 (2008) is not deemed to constitute pyramiding.  See Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14 (2017).

ORDER

Service connection for a sleep disorder, to include as secondary to PTSD, is denied.

Service connection for a neck disorder is denied.

A disability rating for cold injury residuals in the right lower extremity in excess of 10 percent prior to November 21, 2012 is denied.

A disability rating for cold injury residuals in the right lower extremity in excess of 20 percent from November 21, 2012 is denied.

A disability rating for cold injury residuals in the left lower extremity in excess of 10 percent prior to November 21, 2012 is denied.

A disability rating for cold injury residuals in the left lower extremity in excess of 20 percent from November 21, 2012 is denied.

A compensable disability rating for forehead disfigurement by scars is denied.

A disability rating in excess of 10 percent for a painful scar on the forehead is denied.


REMAND

With respect to the claims of entitlement to increased disability ratings for PTSD and unilateral glaucoma in the right eye, the AOJ failed to substantially comply with the Board's July 2015 remand directives.  As such, an additional remand is necessary before the Board can adjudicate those issues.  See Stegall, 11 Vet. App. at 271 (where the remand orders of the Board are not complied with, . . . ensure compliance); see also Dyment, 13 Vet. App. at 146-47 (1999) (although under Stegall VA is required to comply with remand orders, substantial compliance, not absolute compliance, is required).  The Board also finds that additional development is necessary before it can adjudicate the issues of entitlement to service connection for a heart disorder and for a stroke.

With respect to the claims of entitlement to increased disability ratings for PTSD and unilateral glaucoma in the right eye, pursuant to the Board's July 2015 remand, it appears that examinations were scheduled for the Veteran's PTSD and glaucoma.  The record reflects that the Veteran failed to report to the examinations.  E.g., 03/17/2017, Email Correspondence, at 1.  The notice letters, if any, were presumably sent to the Veteran; however, they are not in the claims file.  Therefore, the case must be returned so that the notice letter that was sent to the Veteran's last known address can be provided.

With respect to the issue of entitlement to service connection for a heart disorder, to include vascular problems and to include as secondary to PTSD and cold injury residuals, a February 2017 cardiological VA examination was conducted, in which the examiner diagnosed coronary artery disease.  03/21/2017, C & P Examination (DBQ CARDIO Heart), at 2.  The VA examiner opined that the Veteran's coronary artery disease was less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event, or illness.  03/21/2017, C & P Examination (DBQ Medical Opinion), at 2-3.  However, the VA examiner offered no adequate rationale other than to indicate that there is "[n]o direct service connection on record."  Id. at 3.  In light of this, the Board finds that the February 2017 VA medical opinion is not fully adequate for adjudication purposes.  See Barr v. Nicholson, 21 Vet. App. 303, 310-12 (2007) (noting that the Board had erred in failing to ensure a VA examination was adequate).  Accordingly, the Board finds that an addendum is necessary.

Moreover, the Veteran has contended that his heart disorder is secondary to his service-connected frostbite.  01/07/2010, VA 21-4138 - Statement in Support of Claim, at 1.  He has also alleged a relationship between his PTSD and his heart disease.  06/17/2010, VA 21-4138 - Statement in Support of Claim (File A), at 4; 06/17/2010, VA 21-4138 - Statement in Support of Claim (File B), at 2.  A social worker indicated that the Veteran's blood pressure rises when he discusses his combat experiences.  04/15/2010, Medical Treatment Record - Government Facility, at 2.  As such, the addendum should also opine on the relationship, if any, between any heart disorder and his frostbite and PTSD.

With respect to the issue of entitlement to service connection for stroke, to include as secondary to a heart disorder, the Veteran has indicated that he was admitted to a private medical center in June 2011 for a stroke.  E.g., 10/05/2012, Legacy Content Manager Documents (LCMD), CAPRI, at 66.  The record does not reflect such treatments, and attempts to obtain those private treatment records are not in the claims file.  Therefore, efforts should be made to locate them, and if unsuccessful the AOJ should notify the Veteran so.

Moreover, in February 2017 the VA examiner opined that the Veteran's stroke history was less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event, or illness.  03/21/2017, C & P Examination (DBQ Medical Opinion), at 2-3.  The VA examiner's opinion relies only on the lack of documentation to reach a nexus opinion.  See id. at 3.  In light of this, the Board finds that the February 2017 VA medical opinion is not fully adequate for adjudication purposes.  See Barr v. Nicholson, 21 Vet. App. 303, 310-12 (2007) (noting that the Board had erred in failing to ensure a VA examination was adequate).  Accordingly, the Board finds that an addendum is necessary.

Furthermore, the February 2017 VA examiner remarked that the stroke "could have been vascular in nature."  03/21/2017, C & P Examination (DBQ Medical Opinion), at 2-3.  VA had previously discussed with the Veteran the relationship of hypertension with strokes.  10/05/2012, LCMD, CAPRI, at 12.  As such, the addendum should address whether the Veteran's stroke was related to any current heart disease.

Additionally, on remand, any other outstanding, pertinent VA treatment records should be obtained.

Accordingly, the case is REMANDED for the following actions:

(This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Obtain and associate with the claims file any outstanding, pertinent VA treatment records from November 2016 to the present.  As many attempts should be made as necessary to obtain those records, to include requesting a specific negative response if no records are located.  The appellant is to be notified of any unsuccessful effort to obtain outstanding VA and private testament records in order to allow the appellant the opportunity to obtain and submit those records for VA review.  Moreover, notify the appellant that he may submit VA Forms 21-4142 to authorize any private medical provider, including the private medical provider he was admitted to in June 2011 for a stroke, to disclose and release to VA information on his treatment, and then request those medical records from the private medical providers.  Additionally, notify the appellant that he may submit any relevant VA and private treatment records in his possession to VA.

2.  After all development has been completed and returned from step 1 above, associate with the claims file any notice letters that were sent to the Veteran for VA examinations of his PTSD and glaucoma.  If the correspondence is not available, reschedule the Veteran for examinations to assess the current severity of the PTSD and glaucoma.  The examinations should be conducted in accordance with the current disability benefits questionnaire or examination worksheet.  a copy of the notice for any additional VA examination should be associated with the claims file.

3.  After all development has been completed and returned from step 1 above, request the VA examiner who conducted the July 2017 VA cardiological examination to review the claims file.  If the July 2017 VA cardiological examiner is unavailable, then another appropriate clinician should be requested to review the claims file.  The clinician is asked to review the claims file to become familiar with the pertinent medical history.  If the clinician finds it necessary to conduct a new examination, then schedule such an examination for the Veteran.  After reviewing the claims file (and conducting an additional examination, if necessary), the clinician is to address the following:

 a.  Is any heart disorder shown or treated at any time during the claim period (from January 2010 to the present) at least as likely as not (50 percent or greater probability) related to active service?  If not, does the record at least as likely as not (50 percent or greater probability) show that any heart disease manifested within one year of the Veteran's separation from service in March 1954?

 b.  Is any heart disease shown or treated at any time during the claim period (from January 2010 to the present) at least as likely as not (50 percent or greater probability) caused by the Veteran's service-connected PTSD?

 c.  Has any heart disease shown or treated at any time during the claim period (from January 2010 to the present) at least as likely as not (50 percent or greater probability) been aggravated by the Veteran's service-connected PTSD?  If aggravation is found, provide baseline levels of the heart disease prior to aggravation.

 d.  Is any heart disease shown or treated at any time during the claim period (from January 2010 to the present) at least as likely as not (50 percent or greater probability) caused by the Veteran's service-connected cold injury residuals of either lower extremity?

 e.  Has any heart disease shown or treated at any time during the claim period (from January 2010 to the present) at least as likely as not (50 percent or greater probability) been aggravated by the Veteran's service-connected cold injury residuals of either lower extremity?  If aggravation is found, provide baseline levels of the heart disease prior to aggravation.

Consider all lay and medical evidence.  Provide a comprehensive rationale for any opinions and conclusions.  If the requested opinion cannot be provided without resort to speculation, court cases require the examiner to explain why the opinion cannot be offered, and to state whether the inability is due to the absence of evidence or to the limits of scientific or medical knowledge.

4.  After all development has been completed and returned from step 1 above, request the VA examiner who conducted the central nervous system VA examination in February 2017 to review the claims file.  If the February 2017 VA examiner is unavailable, then another appropriate VA clinician should be requested to review the claims file.  The clinician is asked to review the claims file to become familiar with the pertinent medical history.  If the clinician finds it necessary to conduct a new examination, then schedule such an examination for the Veteran.  After reviewing the claims file (and conducting an additional examination, if necessary), the clinician is to address the following:

 a.  Is any stroke shown or treated at any time during the claim period (from January 2010 to the present) at least as likely as not (50 percent or greater probability) related to active service? 

 b.  Is any stroke shown or treated at any time during the claim period (from January 2010 to the present) at least as likely as not (50 percent or greater probability) caused by any heart disorder?

  c.  Has any stroke shown or treated at any time during the claim period (from January 2010 to the present) at least as likely as not (50 percent or greater probability) been aggravated by any heart disorder?  If aggravation is found, provide baseline levels of the stroke prior to aggravation.

Consider all lay and medical evidence, to include any private medical records reflecting treatment for a stroke in June 2011.  Consider also the February 2017 VA examiner's opinion that the Veteran's stroke may have been "vascular in nature," as well as the VA's August 2012 discussion with the Veteran about the relationship between hypertension and strokes.

Provide a comprehensive rationale for any opinions and conclusions.  If the requested opinion cannot be provided without resort to speculation, court cases require the examiner to explain why the opinion cannot be offered, and to state whether the inability is due to the absence of evidence or to the limits of scientific or medical knowledge.

5.  After all development has been completed and returned from all steps above, if any benefit sought remains denied, then issue a supplemental statement of the case with consideration to all pertinent evidence, and return the case to the Board, if otherwise in order.

The appellant has the right to submit additional evidence and arguments on any matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369, 372-73 (1999) (per curiam).

Remanded claims must be afforded expeditious treatment.  The law requires that all claims remanded by the Board or by the U.S. Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  38 U.S.C. §§ 5109B, 7112.




______________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs