Citation Nr: 0812424 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 05-39 745 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initially compensable evaluation for right knee tendonitis. 2. Entitlement to an initially compensable evaluation for lumbosacral strain. 3. Entitlement to an initially compensable evaluation for sinusitis. 4. Entitlement to an initially compensable evaluation for hypertension. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD David S. Ames, Associate Counsel INTRODUCTION The veteran served on active duty from March 1992 to March 2004. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida (RO). The appeal is remanded to the RO via the Appeals Management Center, in Washington, DC. REMAND The veteran seeks initially compensable evaluations for service-connected right knee tendonitis, lumbosacral strain, sinusitis, and hypertension. VA is generally required to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A(a) (West 2002). This duty to assist includes the conduct of a thorough and comprehensive medical examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Where the available evidence is too old for an adequate evaluation of the veteran's current condition, VA's duty to assist includes providing a new examination. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). In this case, the veteran last underwent a VA examination in July 2003. However, this examination was conducted approximately 8 months prior to the veteran's separation from active service and he has reported that his service-connected disorders have increased in severity since that time. In addition, in August 2005 the RO also concluded that additional medical examinations were necessary to determine the current severity of the disorders on appeal. However, the evidence of record does not show that these medical examinations were ever scheduled or conducted. The Board therefore concludes that additional VA examinations are needed to provide a current picture of the service-connected disabilities on appeal. 38 C.F.R. §§ 3.326, 3.327 (2007). Accordingly, the case is remanded for the following actions: 1. The RO must provide notice as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) and Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). 2. The RO must contact the veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims, to include medical treatment for the issues on appeal since his service discharge. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; and (c) describe any further action to be taken by the RO with respect to the claim. The veteran must then be given an opportunity to respond. 3. The RO must make arrangements with the appropriate VA medical facility for the veteran to be afforded an orthopedic examination to determine the current severity of his service-connected right knee tendonitis. The claims folder and a copy of this remand must be made available to the examiner for review in conjunction with the examination. All indicated testing must be conducted, including a thorough orthopedic examination of the right knee. The examiner must record pertinent complaints, symptoms, and clinical findings, to include whether instability exists, and if so, to what degree. The orthopedic examiner must conduct range of motion studies on the right knee, to specifically include flexion and extension. If there is clinical evidence of pain on motion, the orthopedic examiner must indicate the degree of motion at which such pain begins. Then, after reviewing the veteran's complaints and medical history, the orthopedic examiner must render an opinion as to the extent to which the veteran experiences functional impairments, such as weakness, excess fatigability, incoordination, or pain due to repeated use or flare-ups, etc. Objective evidence of loss of functional use can include the presence or absence of muscle atrophy and/or the presence or absence of changes in the skin indicative of disuse due to the service-connected right knee tendonitis. The examiner must also provide an opinion on whether the veteran's complaints of pain and any demonstrated limitation of motion are supported by the objective evidence of right knee pathology. A complete rationale for all opinions must be provided. The report prepared must be typed. 4. The RO must make arrangements with the appropriate VA medical facility for the veteran to be afforded an orthopedic examination to determine the current severity of his service-connected lumbosacral strain. The claims folder and a copy of this remand must be made available to the examiner for review in conjunction with the examination. All indicated testing must be conducted, including a thorough orthopedic examination of the lumbosacral spine. The orthopedic examiner must conduct range of motion studies on the lumbosacral spine, to specifically include forward flexion, extension, left and right lateral flexion, and left and right lateral rotation. The examiner must first record the range of motion observed on clinical evaluation, in terms of degrees. If there is clinical evidence of pain on motion, the orthopedic examiner must indicate the degree of motion at which such pain begins. Then, after reviewing the veteran's complaints and medical history, the orthopedic examiner must render an opinion as to the extent to which the veteran experiences functional impairments, such as weakness, excess fatigability, incoordination, or pain due to repeated use or flare-ups, etc. Objective evidence of loss of functional use can include the presence or absence of muscle atrophy and/or the presence or absence of changes in the skin indicative of disuse due to the service-connected back disorder. The examiner must also report any neurological manifestations related to the veteran's service-connected back disorder. A complete rationale for all opinions must be provided. The report prepared must be typed. 5. The RO must make arrangements with the appropriate VA medical facility for the veteran to be afforded an examination to determine the current severity of his service-connected sinusitis. The claims folder and a copy of this remand must be made available to the examiner for review in conjunction with the examination. All indicated testing must be conducted. Specifically, the examiner must state the number of incapacitating episodes of sinusitis requiring prolonged antibiotic treatment (lasting four to six weeks) that the veteran experiences per year, as well as the number of non- incapacitating episodes of sinusitis characterized by headaches, pain and purulent discharge or crusting that the veteran experiences per year. Any other related symptomatology must also be reported. A complete rationale for all opinions must be provided. The report prepared must be typed. 6. The RO must make arrangements with the appropriate VA medical facility for the veteran to be afforded an examination to determine the current severity of his service-connected hypertension. The claims folder and a copy of this remand must be made available to the examiner for review in conjunction with the examination. All indicated testing must be conducted. Specifically, the examiner must note the veteran's predominant diastolic pressure and systolic pressure and state whether the veteran requires continuous medication for control of his hypertension. The examiner must report any cardiovascular manifestations related to the veteran's service-connected hypertension. A complete rationale for all opinions must be provided. The report prepared must be typed. 7. The RO must notify the veteran that it is his responsibility to report for all VA examinations scheduled, and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2007). 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. Copies of all documentation notifying the veteran of any scheduled VA examination must be placed in the veteran's claims file. 8. After completing the above actions, the RO must readjudicate the veteran's claims, taking into consideration any and all evidence that has been added to the record since its last adjudicative action. If any benefit on appeal remains denied, the veteran and his representative must be provided a supplemental statement of the case and given an appropriate opportunity to respond. Thereafter, the case must be returned to the Board for appellate review. No action is required by the veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2007).