Citation Nr: 1807070 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 10-36 273 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for tinea pedis, claimed as a skin disorder of the bilateral feet. 2. Entitlement to service connection for a bilateral knee disorder. 3. Entitlement to service connection for the residuals of a head injury to include a hairline skull fracture and a traumatic brain injury (TBI). 4. Entitlement to service connection for a neck disorder. 5. Entitlement to service connection for hypertension, to include as secondary to posttraumatic stress disorder (PTSD). 6. Entitlement to service connection for sleep apnea, to include as secondary to PTSD. 7. Entitlement to an initial disability rating for PTSD in excess of 30 prior to October 14, 2010 and in excess of 50 percent thereafter. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran, Veteran's Son ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran served on active duty from April 1970 to December 1971. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from various rating decisions by the Department of Veterans Affairs (VA) Regional Office in Houston, Texas (RO). In March 2013, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of this testimony is associated with the claims file. The issues indicated above are currently on appeal. The procedural history of those issues is somewhat complicated. In June 2010, the RO issued a statement of the case (SOC) covering 10 issues, including entitlement to service connection for left ear hearing loss, entitlement to an initial rating in excess of 30 percent for PTSD, and entitlement to service connection for loss of use of the bilateral feet. The Veteran was notified of this SOC by a letter dated June 4, 2010. On August 12, 2010, the RO received a VA Form 9, Appeal to the Board of Veterans' Appeals, which indicated that the Veteran wanted to appeal all of the issues listed on the SOC. In a January 22, 2013 letter, VA informed the Veteran that his August 2010 VA Form 9 had not been timely filed as to the issues relating to PTSD, left ear hearing loss, and loss of use of the bilateral lower extremities as the VA Form 9 was submitted nine days after the 60 day period for submission of the VA Form 9 had expired, and the denials as to these claims were final and not on appeal. The RO then did not certify these three issues to the Board. The Board notes that the VA Form 9 was timely filed for the other issues as it was filed within one year after issuance of the underlying rating decision denying those claims. The U.S. Court of Appeals for Veterans Claims (Court) has held that a veteran has forfeited his opportunity to appeal a VA decision to the Board when he fails to comply with the requirements of 38 C.F.R. § 20.303. Roy v. Brown, 5 Vet. App. 554, 556-57 (1993) (addressing the time limit for filing extensions of time to file a substantive appeal). However, the Court has also held that, unlike a notice of disagreement (NOD), the filing of a substantive appeal is not jurisdictional in nature. Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). In Percy, the Court found that the Board waived the time requirement for filing a substantive appeal by treating the claim as if it was in appellate status for a period of years. The Board finds that VA has waived the time requirements for filing the substantive appeal on all issues listed in the June 2010 SOC, with the exception of entitlement to service connection for left ear hearing loss. With respect to the loss of use of the bilateral feet claim, the RO provided the Veteran with a supplemental statement of the case (SSOC) in November 2012 which readjudicated this issue and specifically stated that the appeal originated from the June 4, 2010 SOC and had been perfected by a substantive appeal received on August 12, 2010. A VA medical examination was also provided for this issue, and it was discussed in the March 2013 hearing before the Board. With respect to the PTSD claim, the Veteran has not been provided with an additional SOC or SSOC covering this issue at any point since June 4, 2010. However, in November 2012 VA sent the Veteran a letter stating that he was being scheduled for examination which was "necessary to make a decision regarding your current appeal." (Emphasis added.) An attached deferred rating decision stated that the examination was scheduled for "evaluation for PTSD." Subsequently, the Veteran was provided with a VA fee-based PTSD examination in December 2012. An additional VA fee-based PTSD examination was also provided to the Veteran in August 2013. Subsequently, a September 2013 rating decision granted a rating of 50 percent for the Veteran's PTSD, effective October 14, 2010, despite stating that the Veteran's claim was received "on August 13, 2012 and February 5, 2013." Accordingly, the Board finds that VA expressly informed the Veteran that he was being examined for the purposes of a pending appeal, not a new claim for an increased rating. As such, the Board finds that VA has also implicitly waived the time requirements for filing a substantive appeal with respect to the PTSD claim. With respect to the left ear hearing loss claim, no additional development or notice has been provided to the Veteran with respect to this issue at any point since June 4, 2010. The claim has not been readjudicated, the Veteran has not been provided with an additional examination, and the issue was not discussed at the March 2013 videoconference hearing before the Board. As such, there has been no explicit or implicit representation by VA, either by the RO or the Board, that it was waiving the filing requirement of a timely substantive appeal with respect to the left ear hearing loss issue. Therefore, the Veteran did not perfect an appeal with respect to the issue of entitlement to service connection for left ear hearing loss, and it is not currently before the Board. The case was previously before the Board in January 2014, when the issues indicated above were remanded. The requested development has not been completed, and additional remand is necessary with respect to all issues with the exception of the claim for a skin disorder of the feet. The issues of entitlement to service connection for a bilateral knee disorder; a hairline skull fracture and residuals, to include a TBI; a neck disorder; hypertension; and sleep apnea, as well as entitlement to increased initial ratings for PTSD are addressed in the REMAND portion of the decision below and are REMANDED to the agency of original jurisdiction (AOJ). FINDING OF FACT The Veteran has a current diagnosis of tinea pedis of the bilateral feet which medical evidence links to service. CONCLUSION OF LAW The criteria for service connection for tinea pedis of the bilateral feet have been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran claims service connection for a skin disorder of the bilateral feet. Specifically he claims that he developed a rash of the feet and lower legs during service and that this has persisted until the present. Service treatment records reveal that the Veteran was treated on several instances for a rash of both feet during service. The diagnosis at the time was dermatitis. While his skin and feet were normal on separation examination, the Veteran reports having a recurring rash of the feet dating from its onset during service to the present. Medical treatment records do show reports of treatment for complaints of rash subsequent to service, dating from approximately the early 1990s. In October 2015 a VA contract Compensation and Pension examination of the Veteran was conducted. The diagnosis was tinea pedis. The examiner's medical opinion was that the currently diagnosed tinea pedis was at least as likely as not related to service based on the documented treatment during service, the current diagnosis and treatment, and the Veteran's reported continuity of symptomatology. Accordingly, service connection for tinea pedis is granted. ORDER Service connection for tinea pedis is granted. REMAND In January 2014 the Board remanded the issues remaining of appeal. The issue involving the rating of the Veteran's PTSD was remanded because the Veteran was not accorded the requested hearing. A review of the record does not show that the Veteran was scheduled for this hearing. While the examinations ordered in the Board's remand were conducted, there is no documentation that any formal readjudiction of the issues on appeal has been conducted. The Court has held that a remand confers on the veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a hearing before the Board at the appropriate Regional Office with respect to the issue of entitlement to an initial rating in excess of 30 percent for PTSD, and a rating in excess of 50 percent for the period on and after October 14, 2010, and provide him notice of the scheduled hearing. Document that the Veteran is scheduled for the hearing, or that he has withdrawn his request for such a hearing. 2. Ensure all prior remand instruction from the January 2014 Board remand have been fully complied with. Corrective action should be taken as appropriate. 3. Then, the issues remaining on appeal must be readjudicated. If any benefit sought on appeal remains denied, the Veteran and his representative must be provided a supplemental statement of the case, which must be documented in the record. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs