Citation Nr: 1802597 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 04-22 818 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to a rating in excess of 10 percent for service-connected chronic stasis dermatitis and cellulitis of the left leg. 2. Entitlement to service connection for hypertension. REPRESENTATION Veteran represented by: Missouri Veterans Commission WITNESS AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran served on active duty from November 1969 to November 1973. This matter comes to the Board of Veterans' Appeals (Board) on appeal from December 2003, September 2006, and June 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In April 2007, the Board reopened and denied the Veteran's claim of entitlement to service connection for hypertension. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2008 decision, the Court vacated the Board's April 2007 decision and remanded the issue to the Board for readjudication. In March 2010, November 2012, and March 2016, the Board remanded the claims for additional evidentiary development. In June 2017, the Board stayed adjudication of the claim for an increased rating for stasis dermatitis and cellulitis of the left leg, pursuant VA's appeal of the Court's decision in Johnson v. McDonald, 27 Vet. App. 497 (2016). At that time, the Board also remanded issue of service connection for hypertension for additional evidentiary development. In August 2017, the Board noted that the Johnson stay had been lifted and remanded the issue of entitlement to a rating in excess of 10 percent for left leg stasis dermatitis and cellulitis for additional evidentiary development. The issue of entitlement to service connection for hypertension was not addressed in the August 2017 remand. The Board notes that the Veteran testified before a Veterans Law Judge (VLJ) at a July 2012 videoconference hearing. A transcript of the hearing has been associated with the file. In April 2017, the Board sent the Veteran a letter informing him that the VLJ who conducted the July 2012 hearing was no longer employed at the Board and asked him to indicate whether he wanted to attend a new hearing. The Veteran responded that he did not wish to have another hearing. The Board notes that in a July 2017 letter, the Veteran's representative indicated that the Veteran had submitted a VA Form 9 which "listed 'varicose veins' as one of the issues being appealed. However this issue was not mentioned in the remand or the Supplemental Statement of the Case (SSOC). It appears to have been overlooked..." A review of the record shows that in a June 2015 rating decision, the RO granted service connection for varicose veins of the left leg and assigned an initial 10 percent rating, effective June 19, 2013. In a June 2015 letter, the Veteran was notified that if he did not agree with the decision, he must complete and return the enclosed VA Form 21-0958, Notice of Disagreement, within one year. In August 2015, the Veteran submitted a VA Form 9 in response to a June 2015 SSOC, on which he indicated continued disagreement with the issues addressed in the SSOC, including service connection for hypertension and a rating in excess of 10 percent for left leg cellulitis and stasis dermatitis. Also on the August 2015 VA Form 9, however, the Veteran indicated that he disagreed with the initial 10 percent rating assigned for his service-connected varicose veins. He claimed that his disability met the criteria for a 40% rating. In response, the RO sent the Veteran a letter in August 2015 explaining that VA regulations now required that appeals be submitted on standardized forms. The RO explained that "[i]n order for us to begin processing your [NOD], you must complete, sign and return the VA Form 21-0958" he had previously been provided. The record currently available to the Board contains no indication that the Veteran returned the completed form. Thus, the issue of entitlement to an initial rating in excess of 10 percent for varicose veins of the left leg is not currently in appellate status 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 In August 2017, the Board remanded the Veteran's dermatitis and cellulitis claim for additional examination. The Veteran failed to report for the scheduled examination. However, in an October 2017 letter, the Veteran stated that he never received notice of the examination. In addition, an October 2017 entry in the Veteran's claims file indicates that the RO cancelled the examination because that particular facility did not employ a dermatologist. Since that time, the RO appears to have taken steps to request an additional examination, although a copy of any subsequent notification letter is not of record. As a result, and in light of the Veteran's contentions that he did not receive notice of the examination, this matter is remanded in order to afford the RO additional time to schedule an appropriate examination at a facility that will comply with the previous examination directives. With respect to the Veteran's hypertension claim, the Board in June 2017 remanded this matter for an additional VA opinion, specifically to address certain evidence that was outlined in the remand directive. In rendering an opinion, the examiner was asked to address a March 1970 service treatment record (STR) documenting a blood pressure reading of 150/100 and an April 1970 STR indicating "? Hi B.P's." In addition, the examiner was asked to expressly note that at separation, the Veteran's blood pressure was assessed as 126/98. The examiner was also asked address a May 1993 letter from New York Life Insurance Company referencing a March 1974 examination, which documented blood pressure readings of 138/96 and 130/88. Finally, the examiner was asked to note a May 1974 medical certificate showing a blood pressure reading of 122/90 and a December 1974 consultation sheet showing blood pressure readings of 155/120 and 130/88. In August 2017, the examiner offered a negative opinion, but in doing so stated that "I am asked to address a reported 3/1970 STR documenting a blood pressure of 150/100 or a 4/1970 STR indicating "? Hi BPs" in the service records provided, however I did not actually see this in the chart despite careful search." The examiner also found that "I am asked to address a reported December 1974 consultation sheet which reportedly showed blood pressure readings of 166/120 and 130/88 in that month, but did not actually see this in the chart despite careful search." Upon review of the Veteran's claims file, however, the Board notes that these readings are indeed contained in the Veteran's records. Finally, the Board notes that the examiner did not address, as specifically requested, the Veteran's blood pressure readings of 126/98 at service separation. As such, this matter is remanded for additional opinion. Stegall v. West, 11 Vet. App. 268, 271 (1998). In this regard, the Board notes that February 2003 and October 2003 entries in the Veteran's electronic claims file contain the evidence listed above. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination by a dermatologist to determine the current severity of his service-connected left lower extremity skin disability. To the extent possible, the examination should be scheduled during a flare-up. The dermatologist should comment on the percentage total body and exposed areas affected by the Veteran's left lower extremity skin disability throughout the pendency of his appeal, including, to the extent possible, during flare-ups. All pertinent evidence of record should be made available to and reviewed by the dermatologist, to specifically include including the photographs submitted by the Veteran in November 2016. If the examination does not take place during a flare-up, the dermatologist should indicate the area of the body that would be affected during a flare-up. 2. Refer the VA claims file to an appropriate clinician for an opinion as to the etiology of the Veteran's hypertension. The clinician is requested to review the claims file in its entirety including all service treatment records, VA, and private treatment records. Then, the clinician should respond to the following: Is it at least as likely as not that any current hypertension had its onset in service, or within the year immediately following any period of service, or is otherwise the result of a disease or injury in service? In rendering this opinion, the clinician should address the March 1970 STR documenting a blood pressure reading of 150/100 and the April 1970 STR indicating "? Hi B.P's." In addition, the clinician should expressly note that at separation the Veteran's blood pressure was assessed as 126/98. The examiner should also address the May 1993 letter from New York Life Insurance Company referencing a March 1974 examination, which documented blood pressure readings of 138/96 and 130/88. The examiner should note the May 1974 medical certificate, which shows a blood pressure reading of 122/90, and a December 1974 consultation sheet which shows blood pressure readings of 155/120 and 130/88 in that month. In this regard, the examiner is directed to February 2003 and October 2003 entries in the Veteran's electronic claims file that contain the evidence listed above. The absence of evidence of treatment for hypertension in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. The clinician is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered in formulating any opinions. If the clinician rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. Should the clinician decide that a physical examination of the Veteran is required to address these questions, one should be scheduled. 3. Readjudicate the Veteran's claims. If the benefits sought on appeal are not granted to the Veteran's satisfaction, furnish to the Veteran and his representative a supplemental statement of the case and afford them the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. The Veteran 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. §§ 5109B, 7112 (2012). _________________________________________________ K. CONNER 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).