hypertension New Attorney Or Represent Myself? Complex Case

[dav_marine72]

Hi Everyone,

I fired my attorney's a couple of month ago. I have always worked my own case but picked them up for the U.S. Court. We got a joint remand on the 4 issues but after it made it's way back to the RO they dropped the ball. They knew they did because I asked for them to walk away from a possible 14-year payout and they did. Not sure if I should work this myself, get a local service officer (Work with them), or get another attorney. Here is the quick (if that’s possible) update on my case.

Joint remand issued at USCAVC in 2010 for increased ratings of both feet (Fractured in service), Back Condition, and chronic right testicle pain back to 2000. Also on appeal is an initial mental rating (Adjustment Disorder) which is secondary to my chronic pain (back) awarded 30% in 2005 and 50% in 2008. Furthermore awards for A&A or SMC (s) back to 2009. When the remand came back from the VACAVC the BVA awarded an increase for my hypertension to 10%, awarded a service connection for GERD 10%, and gave me SMC K for erectile dysfunction from the mental medications I take.

The RO did all new exams (11) in 2013 and rendered a decision in July 2013. The decision increased my back rating from 40% Orthopedic and combined 10% for my lower extremities (Neurological) to an increase to 40% of the left leg and 20% for the right leg. My back was originally awarded service connection in 2000 with a 20% rating. Then in 2008 the BVA award the 10% for combined lower extremities to 2002. Strange how they bucketed my legs together but then choose the left leg as an increase and the right as a new SC. They said they had no evidence before July 2013 to give increased rating of my legs back to anytime back to 2002 when VA law changed and the ratings could be based on orthopedic and neurological symptoms.

As far as the back goes I had L3-L4, L4-L5 discectomies in 2000 which gave me no relief prompting me to put in for SC right after. I have well documented muscle spasms, severe leg pain, etc. from 1997 - 2006. From 2006 - 2009 I was seen at a pain clinic and given high doses of opiates, several shots, etc. When I first saw the pain doctor he diagnosed in addition to totally desiccated discs from L3-S1, scar tissue from the first surgery entrapping the nerve roots. He explained he would try to break up the scar tissue with the injections but because it had been there since 2000 it would be nearly impossible. He further went on to explain that the pain in both my legs down to my feet were concurrent with the nerves being entrapped by the scar tissue and the damage from the 3 discs. In 2009 I had an L3-S1 3 level fusion with titanium cages installed. This caused me 100% more pain and I could not go back to work. In 2010 I was awarded TDIU based on my back and mental conditions. I had a statement from a VA mental health doc stating my mental condition alone could have rendered me unemployable but with my back and everything else I suffered from severe impairment in occupational and social functioning. Since this surgery I have basically only left my house for medical appointments. I had a spinal stimulator implanted in 2010 at a VA facility. I continued to be on 300 mg + of Oxy, Morphine, or Dilaudid until I recently switched over to Suboxone at the VA a couple of months ago.

Both of my feet were fractured during service months apart. I have high arch feet (Pes Cavus) and they believe the combination of the breaks and my feet structure caused my back problems. My right foot was awarded 10% since 1996. My left was awarded 0% since 1996. Both are on appeal for higher ratings since 2000. The USCAVC stated in the remand I needed new exams and both my feet should be looked at possibly being rated under acquired Pes Cavus for a higher rating. Mind you I asked and have in my case file a letter where I asked for service connection for Pes Cavus in 2002 just to cover my butt. The RO and BVA ignored the request. I now have arthritis, severe ankle equinus, and nerve entrapment of the top of my feet, Pes Cavus and severe pain in both feet. I have VA and civilian records showing these diagnoses back to 1996 when I got out of service. I recently had an IME done and will be submitting next week to the RO. In the IME the doctor reviewed all my service and civilian records from 1991 - present. Including the 20+ feet x-rays done at the VA. He is supporting my claims with nexus letters for the arthritis, severe Pes Cavus, severe ankle equinus, nerve entrapment, etc. as either being worsened by my military service or directly caused by the breaks of both feet and my Pes Cavus structure. In July 2013 the RO denied higher ratings for the feet. Their logic was I'm not service connected for Pes Cavus and even if I was no higher ratings are shown. At minimum based on the evidence I have I would rate 40% combined for both feet back to 2000 -2002. My former lawyers though this was my strongest case.

My mental ratings are on appeal from initial ratings back to 2005. Since 2000 I have been on large doses of ativan and Zoloft or some form close to it. Up until around 2011 I was drinking heavily on the benzos, opiates, etc. In a 2008 exam the VA doctor stated I have severe impairment in Occupational and social functioning. He stated furthermore that I have almost zero impulse control and that partake in high-risk activities that could harm others or myself. This was in addition to all my doctors and the examiner diagnosing me with anxiety / panic attacks daily, major depression, and obsessive compulsions. Again in 2009 a VA doctor stated that my mental condition alone caused me to be unemployable. He couldn't even understand how I was able to maintain employment from 2000 - 2009. I also have passive suicidal tendencies well documented. In July 2013 the RO denied me a higher rating from 50% back to 2008 and 30% back to 2005.

The A&A and or SMC (s) was claimed after my L3-S1 fusion surgery in 2009. The VA examiner stated that due to my service connected disabilities my wife couldn’t work and needed to take care of me. I can’t lift anything or ties my shoes. I almost set the house on fire one night because I left something burning on the stove and was too intoxicated on my meds to notice. I flooded the bathroom and my garage because I didn’t shut off a sink in the bathroom. My wife submitted a statement detailing all this and the fact my legs give up at times and I fall. The examiner concluded that I was harm to myself and my wife needed to supervise me. Her words. The RO denied the request saying I take to bed myself and have not been prescribed bed rest or I am not permanently bedridden. They gave so rational for not awarding SMC (s). I was award SMC (s) from January 2009 to July 2009 and then taking back from there on.

Sorry for the book folks but this is my life. To further complicate matters I was able to work from home 2011- 2013 and make more than the poverty limit. The VA is now trying to reduce my TDIU P&T to 90% on the schedule and no P&T. Currently my combined SC is 94.4 % rounded down to 93%. I am hoping some of my appeals will just push me up to 95 to get 100 (100%) and then if I can work again I won't have to worry about them. Most recently I was fired from another job. This has been a trend for me 2000-2009. I was written up for missing deadlines, not getting along with others, etc. in November 2013. Then fired in January 2014. Mind you this was all while working from home in bed LOL. Yes I am special (Shaking my head). I since have realized I started working again because I couldn't wrap my mind around losing that part of me. I have always been high functioning with all my issues. I couldn’t deal with losing my career in 2009 and was drinking myself to possible death. I got back on SSDI in February 2014 because I was still under probation with them. Since losing my job in January I have been at the VA mental health ward pretty much twice a week. I am in a Subxone addiction program / group. I am in a how to deal with chronic pain in daily life group, anger management group, and a one on one therapy program at my local VA.

I was awarded SSDI in 2009. I notified them in 2011 when I went back to work. Since I was still under their probation period I was able to get this re-instated in February no questions asked. I filed my employment form with the VA last July, Which was the first one I had received from them. My former lawyer had cautioned about formerly notifying the VA of working. Her take was that I was in a protected environment. My former employer knew I was a disabled Vet and allowed me to work remotely which was not the norm for the company. While working I needed to lie in bed on heat or ice. It caught up with me because my large doses of meds caused me to make errors and my mental issues caused me to have disciplinary problems. Berta had already commented on my lawyer’s error of telling me not to notify the VA. She (My lawyer) had thought I was going to get 100% on the schedule once all settled. Obviously that was bad advice. I since discharged her and I see the error of my ways. I am just trying to move forward and get my case settled.

I know this is a large complex case / issues to digest. Any suggestions for anything going on above is welcome. Thank you!

FYI – My current service connections are as follows:

Back Condition 40% Ortho, 40% left leg, 20% right leg (On Appeal)

Adjustment Disorder (Secondary to Back) 50% (On Appeal)

Asthma 30%

GERD 10%

High Blood Pressure (Secondary to back and leg pain) 10%

Right foot 10% (On Appeal)

Left foot 0% (On Appeal)

Chronic Right Testicle Pain 0% (On Appeal)

Erectile Dysfunction 0% (SMC K)

Eczema 0%

SMC (s) denied (On Appeal)

Iliotibial Band Syndrome (Submitted pending)

Myofascial Pain Syndrome (Submitted pending)

[dav_marine72]

Sorry forgot to include some information on the back. During the appeal time period from 2000 - present I had 2 IMOs done by Dr. Bash stating my spine should have been rated 60% back to 2000. I also had an IME done in 2009 by a spine doctor stating I had severe atrophy of both legs from my spinal condition which were apparent when he started seeing me in 2007. The BVA had dismissed Dr. Bashes opinions saying he never examined me. In the 2009 IME the doctor stated he concurred with Doctor Bash's opinion letters and a review of my evidence from service to present. Part of the USCAVC remand was due to Dr. Bash's IMOs and the spine doctors IME in 2009 being ignored. The RO once again ignored this evidence in their July 2013 decision. Stating no opinion was made by the examiner as to my condition prior to her 2013 exam. Part of the remand was to consider all evidence back to 2000 and to specifically have the examiner make an opinion as to my condition back to then. Go figure. The BVA also told the RO to consider A&A and or SMC (s) after all new exams were conducted. To this date the RO has never responded on either.

[Berta]

"Part of the USCAVC remand was due to Dr. Bash's IMOs and the spine doctors IME in 2009 being ignored. The RO once again ignored this evidence in their July 2013 decision. Stating no opinion was made by the examiner as to my condition prior to her 2013 exam. Part of the remand was to consider all evidence back to 2000 and to specifically have the examiner make an opinion as to my condition back to then. Go figure. The BVA also told the RO to consider A&A and or SMC (s) after all new exams were conducted. To this date the RO has never responded on either."

I assume that by "To this date the RO has never responded on either." you dont mean you got a RO denial, you mean it is all still pending at the RO tosatisfy the remand...?.

This advise is applicable to any denial you get if appropriate:


If the VA ignores ( by failing to consider at all and not list in the Evidence list) any probative evidence you have proof that they received, the VA has committed a CUE ( clear and unmistakable error during the appellate period.

VA has done this to me multiple times over the years since filing my initial accrued claim in 1995 and continuing my husband's pending 1151 claim, he filed a few months before he suddenly died. Fortunately those and my other past claims did get resolved properly.

My prime tactic these days is to seek right away in any decision I get from the VA a potential CUE in the decision.
Our rights as claimants are stimed totally, if a VARO decision is legally wrong.

In early Dec 2011 I got a decision so illegal I raised Hell by filing a VACO complaint, and sent the RO a Fax ,telling them to CUE themselves in the decision.

I raised more hell then that but long story there.

Within 3 weeks they cued themselves and I got my proper IHD AO award and the retro......not exactly proper...I have a CUE yourself claim pending on the award too which is also in our CUE forum.

It bears repeating:

If the VA ignores ( by failing to consider at all and not list in the Evidence list) any probative evidence you have proof that they received, the VA has committed a CUE ( clear and unmistakable error) during the appellate period.

If the VA opines on our evidence , that is not ignoring our evidence.

In the CUE link above ,this is the regulation they broke:

I state that the VA failed to apply the basic concepts and evidentary requirements of 38 USC, Chapter One, Part 4, Subpart A, under 4.6 et al, thus:
“Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law. “

There is no reg on how to do use this tactic..I made it up and 2 vets here had success with this after they used my template......

I suggest you hold onto this info in the event the decision is still wrong under 4.6.


"Not sure if I should work this myself, get a local service officer (Work with them), or get another attorney. "

Personally I would work it yourself....but still get a seasoned VSO who has an office in or near the VARO Building......
If he/she doesn't seem on the ball, get a different VSO but still work the claim yourself.

I look at the best vet rep or VSO I ever had when I look in my bathroom mirror every morning.

All of you do.

No one cares as much about our claims, as we do, ourselves.

Everything I can imagine any claimant needs is here at hadit....and that is a far cry from the original electronic veterans community I was in , in the 1980s...modem to modem.No internet at all.

We had to get xeroxes from law libraries to read and understand Title 38 USC in those days. Luckily by the late 1990s Prodigy had a veterans on line BBS system and our most esteemed members were former BVA attorney Bill Smith and deceased hadit member Alex Humphrey ( a lawyer as well) and many advocates and vets helping each other with VA claims. The internet has become the best weapon we have to counteract negative VA decisions.

The last time I was in a vet rep's office (circa 2004) they had PCs but no internet...I wonder if they even had M21-1MR or access the BVA and CAVC decisions.
I hope all that has changed.

I think reps or VSOs are great as a back up...if VA says they didn't get this or that and the VSO sent it in for you.

Then again I would not rely on a VSO to send them anything. I would double check on ebenies about a week later after they said they sent it, to see if they really did.

Edited May 25, 2014 by Berta

[dav_marine72]

Hey Berta,

They never responded to the part of the remand telling them to re-consider A&A or SMC (s) to this date. The back rating they did respond with increased ratings of the legs, Left 40% and right 20%. However as part of the remand they were told to consider the IMOs, the IME, etc. Their answer was the examiner did not comment on the Veteran's back condition prior to the July 2013 exam. I saw her report and the RO did not instruct her to consider my condition for the 13 years prior with all the evidence of record. It's also noteworthy, I believe, that it's virtually impossible to go from combined 10% lower extremities in 2002 to the 40% and 20% in 2013. Nerve damage and atrophy don't happen overnight, I think most doctors would agree. Thats why I had the 2009 IME done detailing the muscle atrophy in my legs due from my nerve damage of the spine.

I responded back to the RO asking why my pain doctor's diagnosis of nerve entrapment from my 2000 back surgery scar tissue was not mentioned. I asked why they never mentioned my 2009 Back IME. I have a decision due the first week of June. The question is will it reduce my rating to 90% and take P&T away or will they rate me based on the actual evidence.

So you believe I should submit a CUE based on ignoring the remand of the SMC? For the back would it be a CUE also since they were told to consider all evidence back to 2000 and they simply stated the examiner did not comment? Isn't it on them to ask her to comment and or get another opinion?

[dav_marine72]

As far as the VSOs I agree. They have way too many cases going on to work your case like you. One thing I liked about the VSOs was their access to RO employees. Once you get an attorney that goes away. I think I will get a VSO as a go between and just work the case myself. I'd hate to have to give 20% for 14 years of a case not worked by an attorney.

[dav_marine72]

Oh in case you wanted to see. Here is the remand from the U.S. Court with a stop at the BVA on it's way back to the RO.

Citation Nr: 1211408

Decision Date: 03/29/12 Archive Date: 04/05/12

DOCKET NO. 04-31 128 ) DATE

)

)

On appeal from the

Department of Veterans Affairs Regional Office in Hartford, Connecticut

THE ISSUES

1. Entitlement to an initial rating in excess of 20 percent for a back disability, involving lumbar strain and degenerative disc disease, for the period prior to March 12, 2009.

2. Entitlement to an initial rating in excess of 40 percent for a back disability, involving lumbar strain and degenerative disc disease, effective from July 1, 2009.

3. Entitlement to a compensable rating for residuals of a fracture, left 3rd metatarsal.

4. Entitlement to a rating in excess of 10 percent for residuals of a fracture, right 3rd metatarsal.

5. Entitlement to a compensable initial rating for a disability manifested by chronic testicular and groin pain.

6. Entitlement to an initial rating in excess of 30 percent for an adjustment disorder for the period prior to September 29, 2008.

7. Entitlement to an initial rating in excess of 50 percent for adjustment disorder.

8. Entitlement to a rating in excess of 30 percent for asthma.

9. Entitlement to a compensable rating for hypertension.

10. Entitlement to a compensable rating for eczema.

11. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as secondary to a service-connected disability.

12. Entitlement to service connection for erectile dysfunction (ED), to include as secondary to a service-connected disability.

13. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance or being housebound.

REPRESENTATION

Appellant represented by: Valerie D. Metrakos, Attorney

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

D. Havelka, Counsel

INTRODUCTION

The Veteran had active service from November 1991 until November 1995.

These matters come before the Board of Veterans' Appeals (BVA or Board) from rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO) in Hartford, Connecticut.

An October 2001 rating decision granted service connection for: a back disability and assigned a 20 percent rating effective May 10, 2000; and for chronic testicular and groin pain, claimed as prostatitis, and assigned a noncompensable (0%) rating effective June 28, 2000.

Ultimately the Veteran's back disability was assigned staged ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). He underwent spinal surgery in March 2009. A September 2009 rating decision assigned a 100 percent, temporary total, rating for convalescence for the period of time from March 12, 2009, to July 1, 2009, pursuant to 38 C.F.R. ß 4.30. A 40 percent rating was assigned for the low back disability effective July 1, 2009.

The Veteran's current appeal is with respect to the underlying rating assigned for his low back disability. Accordingly, the Board has characterized the issues related to the rating of his low back disability as indicated above to account for the specific ratings and periods of time assigned.

The October 2001 rating decision also denied increased ratings for residuals of fractures of the 3rd metatarsal of each foot. The right foot was rated as 10 percent disabling and the left foot was rated at a noncompensable rating.

In March 2008, the Board denied the claims which were on appeal pending from the October 2001 RO rating decision and the Veteran appealed to the Veterans Claims Court. In December 2009, the Court Clerk vacated the Board's decision and remanded the case pursuant to a Joint Motion for Remand (JMR). Accordingly, the issues numbered 1 through 5 above are subject to this JMR.

An April 2005 rating decision granted service connection for a psychiatric disorder, diagnosed as an adjustment disorder, and assigned a 30 percent rating. An April 2009 rating decision increased the rating to 50 percent effective September 29, 2008.

A September 2005 rating decision denied entitlement to an increased rating for asthma which is rated at a 30 percent rating.

A September 2009 rating decision denied entitlement to increased (compensable) ratings for hypertension and eczema; these issues do not involve initial ratings despite the assertions of the Veteran. The September 2009 rating decision also denied service connection for GERD and ED and denied entitlement to SMC based on the need for aid and attendance or being housebound for the period of time subsequent to July 1, 2009.

The claims involving the ratings assigned for the Veteran's service-connected low back disability, testicle and groin pain disability, and psychiatric disability all are the result of appeal from the initial ratings assigned to disabilities upon awarding service connection. Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). The entire body of evidence is for equal consideration.

Consistent with the facts found, the ratings may be higher or lower for segments of the time under review on appeal, i.e., the rating may be "staged." Fenderson v. West, 12 Vet. App. 119 (1999). Such staged ratings are not subject to the provisions of 38 C.F.R. ß 3.105(e) (2003), which generally requires notice and a delay in implementation of a proposed rating reduction. Fenderson, 12 Vet. App. at 126.

The issues of rating the Veteran's low back, feet, testicular and groin pain, psychiatric, asthma, and eczema, as well as the claim for SMC are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.

FINDINGS OF FACT

1. Hypertension requires continuous medication to control; diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more are not shown.

2. GERD is related to the medications prescribed to treat the Veteran's service-connected disabilities.

3. ED as a side effect of the psychotropic medication used to treat the Veteran's service-connected psychiatric disability.

CONCLUSIONS OF LAW

1. The criteria for a 10 percent rating, but no more, for hypertension, have been met. 38 U.S.C.A. ßß 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. ßß 4.1, 4.2, 4.3, 4.6, 4.7, 4.104, Diagnostic Code (DC) 7101 (2011).

2. GERD is secondary to service-connected disabilities. 38 U.S.C.A. ßß 1110, 1131, 5103(a), 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. ßß 3.102, 3.303, 3.310 (2011).

3. ED is secondary to service-connected disabilities. 38 U.S.C.A. ßß 1110, 1131, 5103(a), 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. ßß 3.102, 3.303, 3.310 (2011).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran's claims folder is extensive; it is now 7 volumes in size and continues to grow. The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to his claims.

Increased Rating for Hypertension

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. ß 4.1 (2011). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. ß 1155 (West 2002); 38 C.F.R. Part 4 (2011).

However, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment).

Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. ß 4.7 (2011). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. ß 4.3 (2011).

While a veteran's entire history is reviewed when assigning a disability evaluation, where service connection has already been established and an increase in the rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007).

In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary.

The Veteran claims entitlement to an increased (compensable) rating for hypertension. Specifically, he indicated that hypertension warrants the assignment of a 10 percent rating.

Hypertension is rated under DC 7101 for hypertensive vascular disease (hypertension and isolated systolic hypertension). A 10 percent rating contemplates diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control.

A 20 percent rating contemplates diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200. A 40 percent rating is warranted for diastolic pressure predominantly 120 or more. Finally, a 60 percent rating contemplates diastolic pressure predominantly 130 or more.

The regulation further indicates that hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. For purposes of this section, the term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm.

The Veteran asserts he has been treated for hypertension since approximately 1997. Review of the evidence of record reveals confirmed diagnoses and treatment for hypertension dating from December 2001. Private medical records dated in late 2001 and early 2002 reveal that the Veteran was evaluated for elevated blood pressure. A December 2001 private treatment record reveals blood pressure readings of 138/110 and 160/110. A diagnosis of hypertension was made and anti-hypertensive medication was prescribed.

A January 2002 private treatment record from the same physician indicates a blood pressure of 140/100. A February 2002 treatment record indicates blood pressure readings of 125/98 in the left arm and 140/102 in the right arm. A treatment record later that month indicated a blood pressure reading of 140/100. Continued treatment with anti-hypertensive medication was conducted and the Veteran's blood pressure began to lower, albeit still remain higher than optimal levels. For example, a March 2002 treatment record reveals a variety of blood pressure readings: 137/77; 125/95; 125/88; 125/77; and 150/99.

These records indicate that the Veteran had a diastolic blood pressure of predominantly 100 or more and that he required medication to control his hypertension. VA treatment records dated from 2002 to the present show that he has required continuous medication to control hypertension. The evidence of record reveals that he meets the criteria of the assignment of a 10 percent rating by having a history of diastolic pressure predominantly 100 or more which requires continuous medication for control. Accordingly a 10 percent rating for hypertension is warranted.

The preponderance of the evidence is against the claim for a rating in excess of 10 percent. Simply put, the medical evidence of record does not reveal that, from the effective date of service connection to the present, the Veteran has ever had diastolic blood pressure predominantly 110 or more or systolic blood pressure predominantly 200 or more.

An August 2011 statement acknowledges that the Veteran's "documented blood pressures remain under 100 diastolic, he is continually sustained on anti-hypertensive medications," to maintain control of his hypertension. This suggests that his claim was for a 10 percent rating. Nonetheless, the preponderance of the evidence is against the claim for the assignment of a rating in excess of 10 percent. There is no doubt to be resolved and the appeal for a rating in excess of 10 percent for hypertension is denied.

Service Connection Claims

Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. ß 1110 (West 2002). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. ß 3.303(b) (2011). However, continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. ß 3.303(b) (2011).

Further, service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. ß 1113(b) (West 2002); 38 C.F.R. ß 3.303(d) (2011). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. ß 3.310 (2011). Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id.

The Board notes that 38 C.F.R. ß 3.310 was amended effective October 10, 2006. Under the revised ß 3.310(b) (the existing provision at 38 C.F.R. ß 3.310(b) was moved to sub-section ©), any increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service-connected. As the Veteran filed his claim well before, the amendment is not applicable to the current claim.

The Veteran claims service connection for GERD and ED on a secondary basis. He claims that he has both disabilities as the result of medication prescribed to treat his service-connected disabilities.

The Veteran is service-connected for a multitude of disabilities. In terms of severity, his primary disabilities are related to his low back and psychiatric disorder. He is prescribed various medications to treat his symptoms of chronic pain from his low back disability, as well as multiple psychotropic medications to treat his psychiatric symptoms.

With respect to GERD, some VA treatment records indicate a relationship between GERD and the Veteran's continued use of alcohol. On the other hand, an October 2009 VA treatment record found that GERD was possibly related to medications prescribed to treat various service-connected disabilities. He has submitted a list of side effects of his various prescribed medications, and gastrointestinal symptoms are listed as known side effects of many of his medications.

The fact is that the Veteran is on a large volume of prescription medications to treat his service-connected disabilities. Many of these medications have gastrointestinal symptoms listed as common side effects. Despite his use of alcohol, there is a medical opinion indicating some possible linkage between GERD and the medications prescribed to treat his service-connected disabilities. Resolving all doubt in his favor, the Board finds that service connection for GERD is warranted on a secondary basis.

With respect to ED, an October 2009 VA treatment record specifically indicated that the Veteran psychiatric symptoms had poor response to Wellbutrin, but his symptoms were much better controlled with Zoloft, "in spite of the side effect of erectile dysfunction." The evidence clearly establishes that Zoloft was prescribed to treat his service-connected psychiatric disability and resulted in ED. Accordingly, service connection for ED is warranted on a secondary basis.

Notice and Assistance

VA is required to meet the notice and duty to assist provisions of 38 U.S.C.A. ßß 5100, 5102, 5103, 5103A, 5106, 5107, 5126 and 38 C.F.R. ßß 3.102, 3.156(a), 3.159, 3.326. Given the favorable outcome, no conceivable prejudice to the Veteran could result from the grant of service connection for GERD and ED above. See Bernard v. Brown, 4 Vet. App. 384 (1993).

With respect to the claim for an increased rating for hypertension, upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. ß 5103(a).

The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006);

The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).

The RO provided the Veteran with pre-adjudication notice for his claim for an increased rating for hypertension by a letter dated April 2009. This notification substantially complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim, the relative duties of VA and the claimant to obtain evidence, and notification of the laws regarding degrees of disability and effective dates. This letter also complied with the requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006). Moreover, he is represented by an attorney who did not raise the issue of any defect in notice provided to the Veteran in the August 2011 written statement.

VA has obtained VA treatment records, a VA examination reports, assisted the Veteran in obtaining evidence, and afforded him the opportunity to present statements and evidence. All known and available records relevant to the issue on appeal have been obtained and associated with the claims file and he has not contended otherwise.

In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Thus, VA has substantially complied with the notice and assistance requirements and he is not prejudiced by a decision at this time.

ORDER

A 10 percent rating, but no more, is granted for hypertension, subject to the law and regulations governing the payment of monetary awards.

Service connection for GERD is granted.

Service connection for ED is granted.

REMAND

In October 2010, the Veteran submitted a copy of a recent Social Security Administration (SSA) disability decision, dated September 2010, which indicated that he was found to be disabled as a result of low back and psychiatric disabilities. The SSA records need to be obtained. Waddell v. Brown, 5 Vet. App. 454 (1993).

The December 2009 JMR, stated that an additional examination of the Veteran is required with respect to his low back disability. Remand confers on the appellant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). The JMR specifically indicated that the VA examinations of record were inadequate with respect to the evidence provided with respect to any neurologic manifestations from the low back disability. When the medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992).

In April 2011, the Board remanded the claim to the RO so that VA examinations could be conducted with respect to the Veteran's claims for increased ratings for his service-connected low back disability, as well as examinations for his bilateral foot disabilities and his testicular and groin pain disability. In April 2011, Veteran's attorney submitted a written statement which argued that additional VA examination of the Veteran's feet and groin pain disability was unwarranted and that the Board was impermissibly undertaking additional development. See Maniano v. Principi 17 Vet. App. 305 (2003). Simply put, the Veteran's attorney is wrong.

With respect to the groin pain disability, the JMR specifically indicated that the Board did not consider the December 2004 and October 2007 statements from Dr. B, who asserted that the Veteran's testicular and groin pain "likely originate from the ilio-inguninal nerve and not from prostate or bladder organ systems . . ." Dr. B's medical opinions allege that they are based upon a review of all the evidence; however, his medical opinions fail to reference, or discuss, private treatment records from the late 1990s which involve the evaluation of the Veteran's complaints of testicle and groin pain.

Specifically an August 1998 private urology evaluation which established that the Veteran's testicle pain was complex and "completely consistent with intermittent congestive prostatitis." He had claimed for years that his testicle and groin pain were related to a urological disorder. Moreover, his complaints of groin pain pre-date by several years his 2000 lumbar disc surgery.

The Veteran has alleged that the Board has ignored evidence of record in the adjudication of his appeal, yet he relied upon medical opinions from a physician never physically examined him and who failed to consider pertinent evidence of record. The bottom line is that he is service-connected for a disability manifested by chronic testicular and groin pain. If it is neurological, and related to his low back disability, as Dr. B's medical opinions indicated, then it is a neurologic manifestation of the service-connected low back disability and warrants additional examination as ordered in the JMR.

With respect to the foot disabilities, the Veteran again asserted that the Board was impermissibly undertaking additional development. In the JMR, he referenced private medical records dated May 2000 which indicated that he had tarsal tunnel syndrome and that the Board should consider this in rating his foot disabilities. In the April 2011 statement, he referred to the Board developing negative evidence related to a claim for service connection for pes cavus.

The Veteran is correct that there is medical evidence of tarsal tunnel syndrome, and pes cavus (claw foot) of record. The relationship, if any, between these disorders and the service-connected residuals of fractures of the 3rd metatarsals of both feet is not definitively established. Moreover, if rating his foot disabilities under DC 5278 for pes cavus is warranted, the current medical evidence establishing the diagnoses is inadequate with respect to the specific rating criteria.

Next, the claim for an increased rating for eczema does not involve an initial rating. The most recent VA examination was conducted in June 2009. The examination reports indicates that the surface area of the Veteran's skin affected by his service-connected eczema was "1/2 %" of both the exposed area and the total surface area of his skin.

In the August 2011 written argument, the Veteran asserts that the skin area affected by the eczema is at least 5%. Reading this contention in a light most favorable to him suggests that his eczema has increased in severity or undergone an exacerbation, or flare-up, since the last examination. Accordingly, another examination is required.

With respect to the claim for an increased rating for asthma, the most recent pulmonary function test (PFT) results are almost 5 years old. PFT values are critical in rating this disability. Another examination is necessary.

When the medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992).

Accordingly, the case is REMANDED for the following actions:

1. Obtain VA clinical records from the West Haven Medical Center for the period from May 1, 2010, to the present.

2. Obtain SSA records pertinent to the Veteran's claim for disability benefits, as well as the medical records relied upon concerning that claim. If unsuccessful, document all attempts made to obtain these records.

3. After obtaining the above records, review and consider if an additional examination is warranted and if so, order a psychiatric examination to determine the severity of the Veteran's service-connected psychiatric disability.

4. Schedule the Veteran for an examination to determine the present severity of the thoracolumbar spine disability. The examination report should include a detailed account of all low back pathology found to be present. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. The examiner should:

(a) Conduct range of motion studies in the thoracolumbar spine including after repetitive movement accounting for any limitations due to pain, weakness, fatigability, or incoordination.

(b) State whether the Veteran has ankylosis in the thoracolumbar spine.

© Assess whether the Veteran has had any incapacitating episodes due to flare-ups in the thoracolumbar spine in the past 12 months, and if so, the duration of such episodes.

(d) State whether the Veteran has muscle spasm on extreme forward bending with loss of lateral spine motion, unilateral, in a standing position or listing of the whole spine to the opposite side with a positive Goldthwaite's sign;

(e) State whether the Veteran has persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, with little intermittent relief.

(f) The examiner should provide a description of the effect, if any, of the Veteran's pain on the function and movement of his spine. See DeLuca v. Brown, 8 Vet. App. 202 (1995).

5. Schedule the Veteran for an examination to assess any neurological impairment as a result of his service-connected thoracolumbar spine disability.

The examination report should include a detailed account of all neurological impairment and pathology resulting from the service-connected low back disability found to be present. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. The examiner should:

(a) Separately assess any neurological impairment as a result of the thoracolumbar spine disability, including complaints of sciatica and pain in the lower extremities. Identify the specific nerves involved and state whether any impairment is analogous to mild, moderate, or severe incomplete paralysis.

(b) State whether the Veteran's complaints of chronic testicular and groin pain are neurologic in nature and if they are a result of the thoracolumbar spine disability. Identify the specific nerves involved and state whether any impairment is analogous to mild, moderate, or severe incomplete paralysis.

© State whether the Veteran has persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, with little intermittent relief.

(d) The examiner should provide a description of the effect, if any, of the Veteran's pain on the function and movement of his spine. See DeLuca v. Brown, 8 Vet. App. 202 (1995).

6. Schedule the Veteran for an examination to determine the present severity resulting from the residuals of fractures of the 3rd metatarsals of both the right foot and left foot. The examination report should include a detailed account of all foot pathology found to be present. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. The examiner should:

(a) Indicate if there is malunion or nonunion of the tarsal for metatarsal bones and if so, is it analogous to moderate, moderately severe or severe.

(b) State whether there is actual loss of use of either, or both feet.

© State whether the Veteran has pes cavus of either, or both feet. If pes cavus is present indicate the specific symptoms which are manifest including the presence of: dorsiflexion of the great toe; limitation of dorsiflexion of the ankle; definite tenderness under the metatarsal heads; all toes tending to dorsiflexion; limitation of dorsiflexion at the ankle to right angle; shortened plantar fascia, marked tenderness under the metatarsal heads; and marked contraction of plantar fascia with dropped forefoot, all toes hammer toes, very painful callosities and marked varus deformity.

(d) State whether the Veteran has tarsal tunnel syndrome of either or both feet. If present indicate the specific symptoms which are manifest.

(e) The examiner should provide a description of the effect, if any, of the Veteran's pain on the function and movement of his feet. See DeLuca v. Brown, 8 Vet. App. 202 (1995).

7. Schedule the Veteran for a genitourinary examination to determine the present severity resulting from a disability manifested by chronic testicular and groin pain. The examination report should include a detailed account of all genitourinary pathology found to be present. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. The examiner should:

(a) Indicate if the Veteran's complaints of testicle and groin pain are genitourinary or neurologic in origin.

(b) Indicate the exact symptoms of voiding dysfunction and/or urinary tract infection which are present manifestations of the Veteran's disability manifested by chronic testicular and groin pain.

8. Schedule the Veteran for an examination to determine the present severity of his asthma. The examination report should include a detailed account of all respiratory pathology found to be present. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report.

PFTs must be conducted and reflect the values for FEV-1 and FEV-1/FVC. The examiner should review the Veteran's prescription medications and respiratory treatment records from 2005 to the present and indicate in a narrative form:

(a) If the asthma has required at least monthly, visits to a physician for required care of exacerbations.

(b) If the asthma has required intermittent (at least three per year), courses of systemic (oral or parenteral) corticosteroids.

© If he has had more than one asthma attack per week with episodes of respiratory failure

(d) If he requires daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications.

(e) If any of the above are noted in the Veteran's medical records from 2005 to the present, state the period(s) of time when the specific criteria were present.

9. Schedule the Veteran for an examination to determine the present severity of his eczema. The examination report should include a detailed account of all skin pathology found to be present. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. The examiner should:

(a) Provide measurements of the percent of the entire body and the exposed areas affected by the eczema.

(b) Upon review of the treatment and prescription records indicate if systemic therapy such as corticosteroids or other immunosuppressive drugs required has been required to treat the eczema, and if so for what specific period(s) of time.

10. With respect to ALL the examinations, a rationale for all opinions must be provided. The claims file must be reviewed in conjunction with the examinations.

If the examiners feels that the requested opinions cannot be rendered without resorting to speculation, the examiners should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training).

11. Then, review the claims folder and ensure that all of the foregoing development has been completed in full. If any development is incomplete, appropriate corrective action is to be implemented. If the medical examination reports do not include adequate responses to the opinions requested, it must be returned for corrective action.

12. Following the above, readjudicate all of the Veteran's claims. In this regard:

* Consider rating the low back disability as intervertebral disc syndrome, including consideration of the criteria for incapacitating episodes.

* Consider the rating of groin pain under the appropriate neurologic diagnostic code.

* Consider rating the bilateral foot disabilities under the diagnostic code for pes cavus.

* Consider the claim for SMC based on the need for aid and attendance or being housebound in light of any rating changes resulting from this decision and any adjudicative actions taken on remand.

If any benefit sought on appeal remains denied, a supplemental statement of the case should be issued, and the Veteran and his attorney should be afforded an opportunity to respond. Then, the case should 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).

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.A. ßß 5109B, 7112 (West Supp. 2011).

______________________________________________

L. HOWELL

Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

[john999]

So did you tell the VA you went back to work while you were TDIU? Did they find out via comparing SSA or IRS records?