Citation Nr: 1805084 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 07-24 384A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for type II diabetes mellitus. 2. Entitlement to a compensable evaluation for bilateral foot tinea pedis. 3. Entitlement to an evaluation in excess of 10 percent for a left hip contusion and strain with residuals. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: North Carolina Division of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Wulff, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1991 to September 1991. He also had additional service in the North Carolina Army National Guard, which included a period of active duty for training from November 1989 to March 1990. These matters come before the Board of Veterans' Appeals (Board) on appeal from August 2006, June 2016, and November 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In the August 2006 rating decision, the RO continued a 10 percent evaluation for a left hip contusion and strain with residuals. The June 2016 rating decision, in relevant part, denied service connection for type II diabetes mellitus. In the November 2016 rating decision, the RO continued a noncompensable evaluation for bilateral foot tinea pedis. In July 2010, the Board remanded the issue of entitlement to an evaluation in excess of 10 percent for a left hip contusion and strain with residuals for further development. The Board subsequently denied the claim in December 2011. In September 2013, the Veteran was notified of his opportunity for a new decision and Board hearing in light of Bryant v. Shinseki, 23 Vet. App. 488 (2010). The Veteran requested that the Board vacate its prior decision and issue a new one after an additional hearing had been conducted. Thereafter, in June 2014, the Board vacated the December 2011 decision that denied entitlement to an evaluation in excess of 10 percent for a left hip contusion and strain with residuals. The Veteran testified at another hearing before the undersigned Veterans Law Judge in September 2014 with respect to the issue of entitlement to an increased evaluation for his left hip disorder. A transcript of that proceeding is associated with the record. The Board remanded the issues of entitlement to an increased evaluation for a left hip disorder and TDIU for further development in May 2015 and March 2017. The case has since been returned to the Board for appellate review. This appeal was processed using the Veterans Benefits Management System (VBMS) electronic claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Regarding the issue of entitlement to an increased evaluation for a left hip disorder, the Veteran was afforded a VA examination in May 2017. The examiner indicated that passive range of motion testing could not be performed or was not medically appropriate. However, he did not provide any rationale or explanation for that determination. Moreover, the examiner did not comment as to whether range of motion measurements for active motion, passive motion, weight-bearing, and/or nonweight-bearing could be estimated for the other VA examinations conducted during the appeal period. Therefore, a remand is necessary to obtain an additional VA examination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stegall v. West, 11 Vet. App. 268, 271(1998). Regarding the issue of entitlement to an increased evaluation for bilateral foot tinea pedis, the Veteran was afforded a VA examination in July 2017. Thereafter, in his October 2017 substantive appeal, the Veteran reported that he was prescribed oral medication suggesting a possible worsening of his bilateral tinea pedis. In addition, a June 2017 VA dermatology record noted that the Veteran was scheduled for a follow-up appointment and that he was interested in pursuing oral medication for his tinea pedis. However, as discussed below, the VA medical records currently associated with the claims file are limited to records dated prior to July 2017. When a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Therefore, the Board finds that an additional VA examination is needed. In addition, in May 2017, the Veteran submitted authorization for VA to obtain his treatment records from the Durham VA Medical Center (VAMC) and Raleigh VA Outpatient Clinic (OPC) dated from January 1993 to May 2017. The record reflects that the AOJ submitted requests to obtain records from those facilities. However, with the exception of an April 1994 VA imaging report, the VA medical records currently associated with the claims file from the Durham VAMC and Raleigh VA OPC are limited to records dated from January 2003 to July 2017. Notably, a June 2017 request for medical records indicated that the Veteran registered for VA treatment in September 1991. Therefore, on remand, the AOJ should attempt to obtain any outstanding VA medical records. See Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). The Board also finds that the issue of entitlement to TDIU is inextricably intertwined with the increased rating and service connection claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that two issues are inextricably intertwined when the adjudication of one issue could have significant impact on the other issue). Lastly, in a February 2016 claim, the Veteran reported that he served in the National Guard until September 1997. Therefore, the AOJ should attempt to verify any additional periods of service and obtain any outstanding service treatment records. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for the disorders on appeal. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA medical records, to include any records from the Durham VAMC and Raleigh VA OPC dated from September 1991 to January 2003 and any records dated from July 2017 to the present. 2. The AOJ should attempt to verify the Veteran's reported periods of service and obtain any outstanding service personnel and service treatment records. The Veteran has reported that he served in the North Carolina Army National Guard until September 1997, following his period of active duty. See, e.g., February 2016 claim. The AOJ should document all efforts undertaken and the responses received. 3. After completing the foregoing development, the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected left hip contusion and strain with residuals. The examiner is requested to review all pertinent records associated with the claims file. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the disability. In particular, the examiner should provide the range of motion in degrees for the Veteran's left and right hips. In so doing, the examiner should test the Veteran's range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain so in the report. The examiner should also indicate whether there is any form of ankylosis. In addition, the examiner should state whether there is malunion of the left femur with slight knee or hip disability, moderate knee or hip disability, or marked knee or hip disability; whether there is a fracture of the neck of the left femur with a false joint; and whether there is nonunion from a fracture of the shaft or anatomical neck of the left femur with or without loose motion. He or she should also indicate whether there Veteran has a flail joint. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability (including additional limitation of motion) due to these factors. Further, the VA examiner should comment as to whether range of motion measurements for active motion, passive motion, weight-bearing, and/or nonweight-bearing can be estimated for the other VA examinations conducted during the appeal period. See, e.g. July 2006, June 2007, and January 2011 VA examination reports. If the examiner is unable to provide a retrospective opinion as to these specific range of motion findings, he or she should clearly explain so in the report. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. After any additional records are associated with the claims file, the Veteran should be afforded a VA examination to ascertain the severity and manifestations of her service-connected bilateral foot tinea pedis. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the Veteran's bilateral foot tinea pedis. In particular, the examiner should state the percent of the entire body affected and the percent of the exposed areas affected. He or she should also indicate whether the Veteran requires intermittent systemic therapy, such as corticosteroids or other immunosuppressive drugs, and if so, the duration and frequency during the past 12 month period. To the extent possible, the examiner should distinguish the symptoms associated with the service-connected bilateral foot tinea pedis and any symptoms associated with a nonservice-connected disorder. See, e.g., August 1994 rating decision (denying service connection for dermatitis on the left side of the scrotum). A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 5. The AOJ should review the examination reports to ensure compliance with this remand. If the reports are deficient in any manner, the AOJ should implement corrective procedures. 6. After completing the above actions and any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs, the claims should be readjudicated. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ J.W. ZISSIMOS 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).