Citation Nr: 1800538 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 14-21 031 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for a post-appendectomy abdomen scar. 2. Entitlement to service connection for right knee pain. 3. Entitlement to service connection for left knee pain. 4. Entitlement to service connection for chronic heartburn. 5. Entitlement to an initial compensable rating for hypertension. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Sarah Campbell, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1979 to August 1992, August 1996 to April 1997, February 2003 to July 2003, November 2004 to June 2006, and from November 2006 to September 2010. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for bilateral knee pain, chronic heartburn, scar from appendectomy, and granted service connection for hypertension and assigned a noncompensable rating, effective from October 1, 2010. The Veteran timely appealed. The Veteran testified at a hearing before the undersigned in March 2017 and a copy of the hearing transcript is of record. The Board notes that, after the RO's last adjudication of the claims, VA treatment records and VA examinations related to issues currently not on appeal were associated with the record. However, the RO will have opportunity to review the additional evidence received on remand (discussed below). In light of the Board's favorable disposition of the claim for service connection for post-appendectomy abdomen scar, representing a full grant of the benefit sought, a waiver of initial consideration of such evidence is not required as to this issue. See 38 C.F.R. §§ 19.31, 19.37, 20.1304 (2017). The Board also notes that in a March 2012 simplified notification letter, the RO denied the Veteran's claim for service connection for glaucoma, cataracts, and chronic iritis. In February 2013, the Veteran filed an application to reopen service connection for glaucoma, cataracts, and chronic iritis, which was denied in an April 2014 rating decision. The Veteran filed a correspondence labeled notice of disagreement, received in March 2017, but dated August 2012 by the Veteran. As the RO has not yet addressed this correspondence, the Board finds referral of the issue is appropriate. In addition, the Board notes the Veteran raised the issues of service connection for right retina macular edema and an increased rating for bilateral tinnitus in the correspondence date stamped March 2017. These issues have not yet been adjudicated by the RO and are referred to the RO for appropriate action, to include providing the Veteran with the appropriate forms. See 38 C.F.R. §§ 19.9(b) (providing for referral to AOJ of issues not yet adjudicated); 3.150(a) (providing for furnishing of appropriate application form upon request for VA benefits). The issue of entitlement to service connection for post-appendectomy abdomen scar is addressed in the decision below. The issues of entitlement to service connection for right and left knee pain, chronic heartburn, and an initial compensable rating for hypertension is addressed in the REMAND portion of the decision below and are REMANDED to the RO. FINDING OF FACT The Veteran's post-appendectomy abdomen scar is attributable to his active military service. CONCLUSION OF LAW The criteria for service connection for post-appendectomy abdomen scar are met. 38 U.S.C. §§ 1110, 1154, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). In order to prevail on the issue of service connection for any particular disability, there must generally be a showing of the following: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). The service treatment records (STR) reflect the Veteran underwent an appendectomy in August 1980 during his active duty service and that he had a scar on the lower right abdomen quadrant as a result, as noted in July 1993 examination and the July 2010 retirement examination. There is a DD Form 214 in the claims file that specifically indicates that the Veteran entered active duty in February 1980 and was discharged from this period of active duty in August 1992, with the appendectomy occurring during this period of regular active duty service. A January 2011 VA examination also notes the Veteran had a scar from his appendectomy on the right lower quadrant of his abdomen. As such, service connection for post-appendectomy scar is warranted as the scar was the result of surgery coincident with the Veteran's period of active duty service. 38 C.F.R. § 3.303(a) ("service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces") ORDER Service connection for post-appendectomy abdomen scar is granted. REMAND Regarding the Veteran's claim for service connection for right and left knee pain, the January 2011 VA examiner indicated the Veteran's STRs were not reviewed, as they were not available. The examiner noted the x-ray revealed no abnormalities in the knees. The Veteran's STRs reflect that the Veteran reported right knee pain with swelling in November 1968 and left knee pain and effusion in August 1989. The July 1993 in-service examination also notes grinding in both knees and the Veteran reported knee trouble and giving out of knees since August 1989 in his March 2003 report of medical history, as well as in the July 2010 retirement examination. As there is competent evidence of manifestations of symptoms during and since service, the Board finds that the Veteran must be afforded an additional VA examination to determine whether he has a current disability, manifested by bilateral knee pain that are related to or had its onset during service. With regard to the Veteran's claim for service connection for chronic heartburn, the March 2011 examiner indicated that the Veteran does not suffer from chronic heartburn or any other gastrointestinal condition, however, the Veteran has indicated that he has experienced chronic heart burn since 1989 and a June 2009 STR reflects the Veteran was prescribed medication for acid reduction. As such, the Board finds that an additional VA examination is warranted to address the etiology of any gastrointestinal or gastroesophageal disability manifested by heartburn. Regarding the Veteran's claim for an initial compensable rating for hypertension, the Veteran was last afforded a VA examination in January 2011, however, the examiner reported the Veteran did not suffer from hypertension and thus, did not provide any blood pressure readings. As such, the Board finds that an additional VA examination is warranted to determine the current severity of his service-connected hypertension. See Snuffer v. Gober, 10 Vet. App. 400 (1997). As the matters are being remanded, any updated VA treatment records should also be obtained. See Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). Accordingly, the remaining issues are REMANDED for the following action: 1. Obtain any outstanding updated VA treatment records. 2. Schedule the Veteran for a VA examination, with a qualified VA physician to determine the etiology of any bilateral knee disability. The claims file and a copy of this Remand must be made available to the reviewing examiner, and the examiner shall indicate in the report that the claims file was reviewed. Based on the examination and review of the record, the examiner should clearly identify all bilateral knee disabilities found and then should determine whether it is as least as likely as not (50 percent probability or more) that any right or left knee disability had its onset during service or was otherwise causally or etiologically related to service, to include the Veteran's in-service knee complaints as noted throughout the service treatment records. The physician should also address the Veteran's contention as to continuity of his right and left knee pain during and since service. A complete rationale should accompany any opinion provided. The examiner is advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account in formulating the requested opinion. 3. Schedule the Veteran for a VA examination, with a qualified VA physician to determine the etiology of any gastrointestinal or gastroesophageal disability, manifested by heartburn. The claims file and a copy of this Remand must be made available to the reviewing examiner, and the examiner shall indicate in the report that the claims file was reviewed. Based on the examination and review of the record, the examiner should clearly identify all gastrointestinal and/ or gastroesophageal disabilities manifested by heartburn and then should determine whether it is as least as likely as not (50 percent probability or more) that it had its onset during service or was otherwise causally or etiologically related to service, to include the Veteran's prescription of medication for acid reduction, as noted in the service treatment records. The examiner should also address the Veteran's contention as to continuity of his symptoms during and since service. A complete rationale should accompany any opinion provided. The examiner is advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account in formulating the requested opinion. 4. Schedule the Veteran for a VA examination of the Veteran to determine the current severity of his service-connected hypertension. The entire record must be reviewed by the examiner in conjunction with the examination. All pertinent pathology should be noted in the evaluation report in accordance with the current disability benefits questionnaire. All indicated 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. The examiner must explain the rationale for all opinions. 5. After completing the above, and any other development deemed necessary, readjudicate the claims. If the determination remains unfavorable to the Veteran, he should be provided with a supplemental statement of the case and afforded an opportunity to respond. 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. _________________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs