Citation Nr: 18143830 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 14-32 400 DATE: October 22, 2018 REMANDED Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left shoulder disability is remanded. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right shoulder disability is remanded. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a back disability is remanded. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for osteoarthritis is remanded. Entitlement to service connection for diabetes mellitus is remanded. Entitlement to a rating in excess of 10 percent for status post right inguinal herniorrhaphy with scar is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1953 to October 1956. 1. Entitlement to an increased rating in excess of 10 percent for status-post right inguinal herniorrhaphy (right hernia scar) The Board cannot make a fully-informed decision on the issue of increased rating for a right hernia scar because no VA examiner has provided the necessary contemporaneous evidence with regard to the nature and severity of the service-connected disability. The Board notes that the last examination that the Veteran attended that spoke to the severity of the right hernia and scar disability was in June 2004, more than 14 years ago. Since that time, the Veteran has consistently reported that the service-connected disability has progressively worsened and that the extent of the disability is no longer contemplated by the current rating. The Board acknowledges that during the claims period the Veteran has been provided two separate opportunities to attend scheduled VA examinations, in January 2011 and November 2011, and has not reported to either. However, the Board notes that in March 2011, the Veteran provided good cause for missing the earlier examination, noting that he had to attend a funeral. With regard to the latter November 2011 examination, the Board notes that a review of the record does not demonstrate that adequate notice was provided to the Veteran with regard to the date, time, and location of the scheduled examination. Consequently, in view of the potential deficiency in notice for the examination, the Board finds that the Veteran should be schedule for an examination. 2. Entitlement to service connection for a right ankle condition is remanded. The Board cannot make a fully-informed decision on the issue of service connection for a right ankle disability because no VA examiner has opined whether any right disability is etiologically related to the Veteran’s active service. The Board notes that the Veteran has not been provided a VA examination for the claim for service connection for a right ankle disability. VA’s duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claims. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); Robinette v. Brown, 8 Vet. App. 69 (1995). In a claim for service connection, evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits still triggers the duty to assist if it indicates that the Veteran’s condition may be associated with service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran claims that an injury to the right ankle happened during service. Specifically, the Veteran noted that during active service basic training, he fell while lifting a heavy weapon, and injured his back, shoulders, and ankles. The Veteran claims that injury has caused him pain in the ankles since that incident that has progressed until the present. The Board notes that while there is no evidence in the service medical records of a fall or any right ankle injury, there is evidence in the separation examination of a left ankle and left shoulder injury at separation. The Veteran claims that the right ankle was hurt in the same incident that caused those injuries. The Board notes that the Veteran has provided several lay statements accounting the claimed injury, to include those from his family and friends. Post-service medical records also show some evidence of an ankle disability, to include pain. However, the Veteran has not been provided a VA examination specific to the claimed right ankle disability and any possible relationship to an in-service fall. The Board finds that while the lay statements from the Veteran may not be competent to be dispositive of the claims, those statements are sufficient to overcome the low threshold necessary to trigger VA’s duty to provide an examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Therefore, the Board finds that there is sufficient evidence of record to trigger VA’s duty to provide an examination to determine the nature and etiology of any right ankle disability. Therefore, as the Veteran is competent to provide evidence of observable symptoms related to a right ankle disability, and has presented a plausible in-service injury, the Board finds that the evidence is sufficient to overcome the low threshold necessary to trigger the duty to assist by providing an examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 3. Whether new and material evidence has been received to reopen claims of entitlement to service connection for left shoulder, left ankle, right shoulder, and back disabilities is remanded. With regard to the claims that new and material evidence has been submitted to reopen claim for service connection for left shoulder, left ankle, right shoulder, and back disabilities, as the claim for service connection for a right ankle disability is being remanded for additional development, the outcome of that claim could have a direct bearing on those associated claims, as they are claimed to emanate from the same in-service fall and injury. The Board notes that the Veteran has consistently and continuously asserted that a fall during service, while carrying a heavy weapon, caused ankle, shoulder, and back disabilities that have progressed from service until the present. Therefore, the Board finds that the claim for service connection for a left ankle, shoulders, and back disabilities are inextricably intertwined with any analysis of the claim for service connection for a right ankle. Accordingly, since that claim is being remanded, the Board finds that it would be potentially prejudicial to the Veteran for the Board to consider this derivative claim prior to the determination of that other claims. Bernard v. Brown, 4 Vet. App. 384 (1993); Harris v. Derwinski, 1 Vet. App. 180 (1991). 4. Entitlement to service connection for hypertension, osteoarthritis, and diabetes, are remanded. Regarding the claims of entitlement to service connection for hypertension, osteoarthritis, and diabetes, the Veteran submitted a timely notice of disagreement with a December 2008 rating decision, but a statement of the case has not yet been issued. A remand is required for the issuance a statement of the case. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238 (1999). The matters are REMANDED for the following action: 1. Attempt to obtain any outstanding VA treatment records that have not already been associated with the Veteran’s electronic claims file. If no records are available, the claims folder must indicate that fact and the Veteran should be notified. 38 C.F.R. § 3.159 (e). 2. Issue a statement of the case addressing the issues of entitlement to service connection for hypertension, osteoarthritis, and diabetes. Notify the Veteran of his appeal rights and that he must submit a timely VA Form if he wants appellate review of those issues. 3. Then schedule the Veteran for a VA examination, with a qualified VA physician to determine the current nature and severity of a right inguinal hernia disability, to include scars. The examiner must review the claims file and should note that review in the report. All necessary studies and test should be performed and all residuals of a right inguinal hernia, status-post inguinal herniorrhaphy, should be noted. The examiner should provide measurements of any scars and should state whether those scars are painful or unstable. The examiner should state whether any hernia is small, large, recurrent, readily reducible, supported well by truss or belt, irremediable, not well supported by truss or belt, not well supported under ordinary conditions, not readily reducible, or inoperable. 4. Then, schedule the Veteran for a VA examination with a medical doctor. The examiner must review the claims file and should note that review in the report. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any right ankle disability is related to the Veteran’s active service or is caused or aggravated by service-connected disabilities. The examiner is asked to provide an opinion and rationale for the opinion. The examiner must explicitly address the Veteran’s claim that a right ankle disability arose after a fall during his basic training, and that he has had right ankle symptoms since service. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Zi-Heng Zhu, Associate Counsel