Citation Nr: 0001904 Decision Date: 01/24/00 Archive Date: 02/02/00 DOCKET NO. 98-09 170 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES Entitlement to a rating in excess of 10 percent for left knee strain. Entitlement to a compensable rating for hypertension. Entitlement to a compensable rating for tinea manus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Marisa Kim, Associate Counsel INTRODUCTION The veteran had active military service from July 1974 to November 1978, from April 1979 to April 1984, and from September 1986 to April 1997. This appeal arises from a December 1997 rating decision from the Boise, Idaho, Department of Veterans Affairs (VA) Regional Office (RO), that granted service connection for left knee strain, hypertension, and tinea manus. An April 1998 rating decision granted a 10 percent rating for left knee strain and continued the noncompensable ratings for hypertension and tinea manus. REMAND The veteran's claims for a rating in excess of 10 percent for left knee strain and for compensable ratings for hypertension and tinea manus are well grounded. When a veteran is awarded service connection for a disability and subsequently appeals the initial assignment of a rating for that disability, the claim continues to be well grounded. Shipwash v. Brown, 8 Vet. App. 218, 224 (1995); see also Fenderson v. West, 12 Vet. App. 119 (1999). The veteran filed a notice of disagreement with the original December 1997 rating decision that granted service connection for left knee strain, hypertension, and tinea manus. Therefore, in determining whether the original rating was erroneous, the Board considered the evidence from the time of the May 1997 application for service connection. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Once the veteran has established a well-grounded claim, the VA has a duty to assist the veteran in the development of facts pertinent to his claim. See 38 U.S.C.A. § 5107(a) (West 1991). Therefore, this case is remanded to obtain the veteran's complete treatment records and a current comprehensive VA examination. See 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.159, 4.2 (1999); Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992). The RO obtained the veterans service medical records through May 1997. However, treatment records since May 1997 have not been obtained. Therefore, the VA has a duty to assist the veteran in obtaining post-service treatment records. The August 1997 VA examination was inadequate for a current evaluation of left knee strain, hypertension, and tinea manus. If a diagnosis is not supported by the findings on the examination report or if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2 (1999). In particular, the August 1997 VA examination failed to address additional disabling functional loss and pain due to the left knee disability. Therefore, the VA has a duty to assist the veteran in obtaining a current VA examination. New evaluation criteria for hypertension became effective January 12, 1998. Where a law or regulation changes after a claim is filed or reopened, but before the administrative or judicial appeal process has been concluded, the version more favorable to the appellant applies unless Congress provided otherwise or permitted the Secretary to do otherwise and the Secretary does so. Karnas v. Derwinski, 1 Vet. App. 308 (1991). Therefore, hypertension must be evaluated under the criteria, old or new, which are determined to be more beneficial to the veteran. This matter is remanded to the RO for further development as follows: 1. The RO should ask the veteran to provide the names, addresses, and approximate dates of treatment of all health care providers, VA and non-VA, inpatient and outpatient, who have treated him for a left knee disability, hypertension, and tinea manus since May 1997. After securing any necessary authorization or medical releases, the RO should request and associate with the claims file legible copies of the veteran's complete treatment reports from all sources whose records have not previously been secured. Failures to respond or negative replies should be noted in writing and also associated with the claims folder. 2. The RO should schedule the veteran for comprehensive VA examinations to determine the nature and extent of his service-connected disabilities. Any further indicated special studies should be conducted. The claims file and a separate copy of this remand should be made available to and reviewed by the examiner(s) prior to the examination and the examination report must be annotated in this regard. It is essential that the examiner review the claims folder in its entirety. The examiner should also take specific note of the veteran's reported and documented medical history, including in-service and post-service left knee, hypertensive vascular, and skin conditions. In addition, with respect to the left knee disability, the examiner should identify the limitation of activity imposed by the disabling condition, viewed in relation to the medical history, considered from the point of view of the veteran working or seeking work, with a full description of the effects of disability upon his ordinary activity. An opinion should be provided regarding whether pain significantly limits functional ability during flare-ups or with extended use. Voyles v. Brown, 5 Vet. App. 451, 453 (1993). It should be noted whether the clinical evidence is consistent with the severity of the pain and other symptoms reported by the veteran. The examiner also should indicate whether the affected joint exhibits weakened movement, excess, fatigability, or incoordination. Lathan v. Brown, 7 Vet. App. 359 (1995); DeLuca v. Brown, 8 Vet. App. 202 (1995). Any opinion expressed should be accompanied by a written rationale. 3. Thereafter, the RO should review the claims file to ensure that all of the foregoing requested development has been completed. In particular, the RO should review the requested examination report and medical opinion to ensure that they are responsive to and in complete compliance with the directives of this remand, and if they are not, the RO should implement corrective procedures. Stegall v. West, 11 Vet. App. 268 (1998). 4. After undertaking any development deemed essential in addition to that specified above, the RO should readjudicate the claims for a rating in excess of 10 percent for a left knee disability and claims for compensable ratings for hypertension and tinea manus, based on the entire evidence of record. All pertinent law, regulations, and Court decisions should be considered. If the veteran's claim remains in a denied status, he and his representative, if any, should be provided with a supplemental statement of the case, which includes notice of any additional pertinent laws and regulations that were used, and a full discussion of action taken on the veteran's claim. In particular, the supplemental statement of the case must provide notice of the new evaluation criteria for hypertension, effective January 1998. The RO's actions should follow the Court's instructions detailed in Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The veteran has the right to submit additional evidence and argument on the matter or matters that the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). A reasonable period of time for a response should be afforded. 5. Thereafter, the case should be returned to the Board for further appellate review. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. WAYNE M. BRAEUER Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), 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) (1999).