Citation Nr: 1806408 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 13-00 535A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial compensable evaluation for a scar, status post surgery of left arm hemangioma. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for bilateral plantar fasciitis. 4. Entitlement to service connection for a low back disability, to include as secondary to bilateral plantar fasciitis. ATTORNEY FOR THE BOARD G.C., Associate Counsel INTRODUCTION The Veteran served on active duty in the Air Force with honorable service from October 1989 to November 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston Salem, North Carolina. During the pendency of the Veteran's claim, jurisdiction for the claims file was transferred to the RO in Roanoke, Virginia due to the Veteran's residence in Virginia. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board sincerely regrets the additional delay, a remand is required in this case to afford the Veteran every possible consideration and to ensure that there is a complete and accurate record upon which to decide the Veteran's appeal. Under 38 C.F.R. § 20.1304 (c), any pertinent evidence received following certification of an appeal to the Board must be referred to the AOJ for review, "unless this procedural right is waived by the appellant or representative, or unless the Board determines that the benefit or benefits to which the evidence relates may be fully allowed on appeal without such referral." Since the Veteran's appeal to the Board in January 2013, a substantial amount of evidence has been submitted in this case that has not been previously considered by the AOJ. The Board notes that 38 U.S.C. § 7105 (e) permits the Board to initially consider newly received evidence; however, this provision is only applicable to cases where the substantive appeal was filed on or after February 2, 2013. See VA Fast Letter 14-02 (May 2, 2014). Here, the Veteran filed her substantive appeal in January 2013, so waiver of AOJ consideration of the newly submitted evidence is not presumed. The Veteran was not issued a supplemental statement of the case after submitting new evidence. In fact, the Board notes that the Veteran does not wish to waive RO review, as she stated in her July 2014 correspondence that "It was my understanding that if I submitted additional (new) evidence I would be furnished a supplemental statement of the case (SSOC)." Although a remand is necessary for other reasons, it will also serve to alleviate any due process concerns with respect to initial AOJ review of the newly submitted evidence. See 38 C.F.R. § 20.1304 (c) (2017); see also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F. 3d 1339 (Fed. Cir. 2003). With regard to the Veteran's claim of entitlement to an initial compensable evaluation for a scar, the Veteran was last afforded a VA examination to assess the nature and etiology of her scar in November 2009, almost nine years prior to the date of this decision. Furthermore, the Veteran indicated in her January 2013 substantive appeal that her quality of life has been severely affected due to her service-connected scar, that she continues to experience itching, pain and hypersensitivity, and that she cannot carry a handled bag due to localized pain. These symptoms suggest a potential worsening of the Veteran's scar. The duty to conduct a contemporaneous examination is triggered when the evidence indicates there has been a material change in disability or that the current rating may be incorrect. See Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). Thus, as the record indicates a potential worsening of the Veteran's service-connected scar since the last examination, a new VA examination should be obtained on remand. With regard to the Veteran's claims of entitlement to service connection for hypertension, bilateral plantar fasciitis, and a low back disability, including as secondary to bilateral plantar fasciitis, the Veteran was also last afforded a VA examination in November 2009. The Board finds the November 2009 examinations are inadequate. Specifically, while the VA examiner provided a history of the Veteran's claimed conditions and conducted a physical examination, no opinion was provided as to the etiology of said conditions. Without an adequate basis or rationale, a VA examiner's opinion is a bare conclusion with limited probative value. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Miller v. West, 11 Vet. App. 345, 348 (1998). Additionally, when VA undertakes to obtain a VA examination, it must ensure that the examination and opinion therein is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Given the foregoing, the Board finds that the medical opinions of record are both outdated and inadequate, and new examinations are required. Furthermore, as discussed above, the Board finds that the AOJ failed to review newly submitted evidence and issue an SSOC per 38 C.F.R. § 20.1304 (c) (2017). Thus, the AOJ must correct this procedural deficiency, and after all required development is completed, must issue an SSOC. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Center(s) and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and documented for the record. Required notice must be provided to the Veteran and her representative. 2. Contact the Veteran and afford her the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the electronic file. All attempts to secure this evidence must be documented in the claims file. If, after making reasonable efforts, the records cannot be obtained, notify the Veteran and her representative and (a) identify the specific records that cannot be obtained; (b) briefly explain the efforts made to obtain those records; and (c) describe any further action to be taken with respect to the claim. The Veteran must then be given an opportunity to respond. 3. After the above development has been completed and all records associated with the claims file, the Veteran must be afforded the appropriate VA examinations. a. The Veteran must be afforded a VA examination to determine the current severity and manifestation of her service-connected scar status post surgery of the left arm. 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, including the Veteran's post-service medical records, VA examinations of record, and his assertions. An explanation for all opinions expressed must be provided. The examiner must provide accurate and fully descriptive assessments of all scar symptoms. The appropriate Disability Benefits Questionnaire(s) must be utilized. The examiner is asked to also specifically address the Veteran's contentions of worsening in the January 2013 statement. b. The Veteran must also be afforded VA examinations to determine the nature and etiology of her claimed hypertension, bilateral plantar fasciitis, and low back disability. 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, including the Veteran's service treatment records, post-service medical records, VA examinations of record and the Veteran's assertions. An explanation for all opinions expressed must be provided. The examiner must provide accurate and fully descriptive diagnoses of all hypertension, bilateral plantar fasciitis and low back disability symptoms. The appropriate Disability Benefits Questionnaires must be utilized. The examiner is asked to provide an opinion, supported by a clear and adequate rationale as to the following: i. Whether it is at least as likely as not (50 percent or more) that the Veteran's hypertension was incurred in or aggravated by service. ii. Whether it is at least as likely as not that the Veteran's bilateral plantar fasciitis was incurred in or aggravated by service. iii. Whether it is at least as likely as not that the Veteran's low back disability was incurred in or aggravated by service. iv. Whether it is at least as likely as not that any diagnosed low back disability was caused by plantar fasciitis. v. Whether it is at least as likely as not that any diagnosed low back disability was aggravated by plantar fasciitis. The examiner is asked to also specifically address the deficient November 2009 examinations and the Veteran's statements of record, including those in her January 2013 substantive appeal along with the accompanying new evidence. 4. In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and her representative should be issued a supplemental statement of the case, and an appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ CAROLINE B. FLEMING 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).