Citation Nr: 18145057 Decision Date: 10/26/18 Archive Date: 10/25/18 DOCKET NO. 18-34 680 DATE: October 26, 2018 ORDER New and material evidence having been submitted, reopening of the claim of entitlement to service connection for a right knee disability is granted. New and material evidence having been submitted, reopening of the claim of entitlement to service connection for a left knee disability is granted. New and material evidence having been submitted, reopening of the claim of entitlement to service connection for hypertension is granted. Entitlement to service connection for hypertension is granted. Entitlement to an effective date prior to February 22, 2018, for the grant of service connection for ankle scars is denied. REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a heart disability is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. In an unappealed February 2016 decision, a request to reopen claims for service connection for right and left knee disabilities was denied. 2. The evidence associated with the claims file since the February 2016 decision relates to unestablished facts necessary to substantiate the claims for service connection for right and left knee disabilities and raises a reasonable possibility of substantiating the claims. 3. In an unappealed February 1990 decision, entitlement to service connection for hypertension was denied. 4. The evidence associated with the claims file since the February 1990 decision relates to unestablished facts necessary to substantiate the claim for service connection for hypertension and raises a reasonable possibility of substantiating the claim. 5. Resolving reasonable doubt in his favor, the Veteran’s hypertension manifested during or within one year of separation from active service. 6. The Veteran filed a claim for an increased rating for his service-connected bilateral ankle disabilities on December 2, 2014; the record does not indicate that entitlement to a separate 10 percent rating for ankle scars arose prior to February 22, 2018. CONCLUSIONS OF LAW 1. The criteria for reopening a previously denied claim of service connection for a right knee disability are met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 2. The criteria for reopening a previously denied claim of service connection for a left knee disability are met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. The criteria for reopening a previously denied claim of service connection for hypertension are met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 4. The criteria for service connection for hypertension are met. 38 U.S.C. §§ 1101, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). 5. The criteria for an effective date prior to February 22, 2018, for a separate 10 percent rating for ankle scars are not met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1986 to October 1988 in the United States Army. This case comes before the Board of Veterans’ Appeals (Board) on appeal from March 2018 and May 2018 rating decisions issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). Claims to Reopen 1. Knees The Board finds that new and material evidence has been received to reopen the claims of entitlement to service connection for right and left knee disabilities. In a February 2016 rating decision, a request to reopen the claims was denied because there was no evidence that the Veteran’s current knee disabilities were related to active service or a service-connected disability. Since then, in a May 2017 letter, a private podiatrist opined that the Veteran’s service-connected bilateral ankle disabilities contributed to the arthritis in both of his knees. The Board finds that evidence new and material. Therefore, the claims are reopened. 2. Hypertension The Board finds that new and material evidence has been received to reopen the claim of entitlement to service connection for hypertension. In a February 1990 rating decision, the claim was denied because the evidence did not show that hypertension manifested during active service or to a degree of 10 percent or more within one year of separation from service. A September 1989 VA examination noted a diagnosis of hypertension, early incipient; however, the criteria for a 10 percent rating were not met. See 38 C.F.R. § 4.104, Diagnostic Code 7101. Since then, VA and private treatment records show ongoing treatment of hypertension, which suggests possible chronicity and continuity of the disease process. See 38 C.F.R. § 3.303(b). The Board finds that evidence new and material. Therefore, the claim is reopened. Service Connection - Hypertension The Veteran’s service treatment records are unremarkable for a diagnosis of hypertension. He separated from active service in October 1988 and declined a separation examination. That same month, he filed a claim for service connection for hypertension. During a September 1989 VA examination, he reported that hypertension was first noted in 1988 and that he was advised to follow a low sodium diet. On examination, his blood pressure was 120/80 and 110/80 (sitting); 130/90 and 120/90 (recumbent); and 130/100 (standing). The examiner diagnosed him with hypertension, early incipient. A December 2014 VA treatment record indicated that the Veteran had a diagnosis of hypertension and was started on Lisinopril. Later records show ongoing treatment for hypertension. With a chronic disability, such as hypertension, shown as such in service (within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at a later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). Where the condition is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned, continuity of symptomatology is required. Id. Although not documented in the Veteran’s service treatment records, the evidence indicates that hypertension was first noted during active service. According to the Veteran’s statement to the 1989 VA examiner, hypertension was first noted in 1988. In addition, the Veteran filed a claim for hypertension only five days after he separated from service. The Board also notes that the claim for hypertension was prepared and signed in September 1988, prior to his separation from service. Furthermore, a VA examiner confirmed a diagnosis of early onset hypertension within one year of separation from service and current treatment records show ongoing treatment for hypertension. In this case, resolving reasonable doubt in the Veteran’s favor, the Board finds that service connection for hypertension is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Earlier Effective Date – Ankle Scars In December 2014, the Veteran submitted correspondence that was accepted as a claim for increased ratings for his service-connected bilateral ankle disabilities. In a May 2015 rating decision, the RO continued 10 percent ratings for each ankle, and the Veteran appealed. In a July 2018 decision, the Board granted a 20 percent rating for each ankle. In February 2018, during the pendency of his appeal, the Veteran submitted evidence regarding his surgical ankle scars and requested that it be reviewed. The evidence included a Scars/Disfigurement Disability Benefits Questionnaire (DBQ) completed by a private physician, which was dated February 22, 2018. The DBQ indicated that the Veteran had a linear scar on his right ankle, which measured seven centimeters, and that he had a linear scar on his left ankle, which measured 11 centimeters. The DBQ indicated that the scars were painful, but not unstable. In a March 2018 rating decision, the RO granted a separate 10 percent rating for bilateral ankle scars effective February 22, 2018. The Veteran appealed and is seeking an effective date prior to February 22, 2018. He maintains that he has had pain around his scars since the surgeries in 1988. Generally, and except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. In this case, the February 22, 2018 DBQ is the first evidence documenting entitlement to a separate evaluation for scars under Diagnostic Code 7804. Under Diagnostic Code 7804, a 10 percent rating is warranted for one or two scars that are unstable or painful. 38 C.F.R. § 4.118, Diagnostic Code 7804. The May 2015 VA examination report indicated that the scars were not painful or unstable. The Veteran maintains that several documents showed evidence of painful scars prior to February 22, 2018, and that he should receive an effective date since 1988. Those records note bilateral ankle pain; however, they do not indicate that the surgical scars themselves were painful or unstable. The Board notes the Veteran has received compensation for bilateral ankle disabilities since he separated from service in 1988, which includes functional impairment due to pain. Although the surgical scars have been present since 1988, the evidence does not indicate that a separate compensable rating was warranted until the February 22, 2018 DBQ that showed that the scars themselves were painful. In this case, the date of the claim for an increased rating is December 2, 2014. The date entitlement arose is February 22, 2018. As noted above, a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. Therefore, February 22, 2018, is the earliest possible effective date. Based on the foregoing, the Board finds that an effective date prior to February 22, 2018, for a 10 percent rating for ankle scars is not warranted. REASONS FOR REMAND Regarding service connection for bilateral knee disabilities, a VA examination was conducted in June 2014. The examiner opined that the Veteran’s bilateral knee disabilities were less likely proximately due to or the result of the Veteran’s service-connected ankle disabilities; however, the examiner did not provide an opinion as to aggravation. In addition, the examiner did not address the October 1989 X-ray, which showed a small osteophyte of the lower end of the right patella on the lateral film. The Board notes that in May 2017, a private podiatrist opined that the Veteran’s bilateral ankle surgeries contributed to the arthritis in both knees; however, he did not provide any rationale for his opinion. Therefore, the Board finds that a remand is necessary for an additional VA examination. Regarding service connection for a heart disability, a September 1989 X-ray showed that the Veteran’s heart was enlarged. More recent records show diagnoses of chronic systolic heart failure, moderate cardiomyopathy, and coronary artery disease. In addition, as discussed above, the Board has granted service connection for hypertension. Therefore, the Board finds that a remand is necessary for a VA examination to determine the nature and etiology of the Veteran’s heart disability. With regard to the Veteran’s claim for TDIU, the Board finds that the Veteran’s claim is inextricably intertwined with the claims remaining on appeal. Therefore, the appropriate remedy where a pending claim is inextricably intertwined with claims currently on appeal is to remand the claim pending the adjudication of the inextricably intertwined claims. Harris v. Derwinski, 1 Vet. App. 180 (1991). Additionally, current treatment records should be identified and obtained before a decision is made with regard to the remaining issues on appeal. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of any right and left knee disabilities that may be present. Any indicated studies should be performed. Based on the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that any currently present knee disability manifested during active service, within one year of separation from active service, or is otherwise etiologically related to active service. In rendering the above opinion, the examiner should address the October 1989 X-ray, which showed a small osteophyte of the lower end of the right patella on the lateral film, and indicate whether this finding was an early manifestation of the Veteran’s current right knee degenerative joint disease. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that any currently present knee disability is caused or chronically worsened by the Veteran’s service-connected bilateral ankle disabilities. A rationale for all opinions expressed must be provided. 3. Then, schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of any heart disability that may be present. Any indicated studies should be performed. Based on the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that any currently heart disability manifested during active service, within one year of separation from active service, or is otherwise etiologically related to active service. In rendering the above opinion, the examiner should address the September 1989 X-ray, which showed that the Veteran’s heart was enlarged. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that any currently present heart disability is caused or chronically worsened by the Veteran’s service-connected hypertension. A rationale for all opinions expressed must be provided. 4. Confirm that the VA examination reports and all opinions provided comport with this remand and undertake any other development found to be warranted. 5. Then, readjudicate the remaining issues on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Mishalanie, Counsel