Citation Nr: 1010184 Decision Date: 03/17/10 Archive Date: 03/24/10 DOCKET NO. 06-11 179A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUES 1. Entitlement to an initial compensable evaluation for bilateral pes planus (flat feet). 2. Entitlement to service connection for headaches as a residual of a nasal fracture. 3. Entitlement to service connection for a bilateral shoulder condition. 4. Entitlement to service connection for tinnitus. 5. Entitlement to service connection for a low back disability, to include as secondary to service-connected bilateral flat feet. 6. Entitlement to service connection for a bilateral knee disability, to include as secondary to service-connected bilateral flat feet. REPRESENTATION Appellant represented by: Maine Veterans' Services WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD LouElla Kuta, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1972 to August 1992. This matter comes before the Board of Veterans' Appeals based on an appeal of a June 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine, which denied the benefits sought on appeal. The Veteran appeared before the Undersigned Veterans Law Judge in November 2007 at a videoconference hearing. A transcript is of record. In February 2008, the Board issued a decision in this matter denying all claims for service connection, and denying a compensable disability rating for the Veteran's bilateral pes planus. The Veteran subsequently appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court), which in turned vacated and remanded the February 2008 Board decision for further action in a June 2009 Order. The appeal with regard to claims of entitlement to service connection for a sinus condition as a residual of a nasal fracture and bilateral hearing loss were dismissed. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Joint Motion indicates that the medical examinations relied upon by the Board may have been inadequate and requires the Board to obtain additional medical opinions. The Board relied on medical examinations conducted in October 2004 (pes planus), November 2004 (tinnitus), and December 2006 (headaches, back, bilateral shoulders and knees). The parties agreed that these examinations and opinions were inadequate because they failed to provide a proper rationale for rating purposes and/or a nexus for service connection and, in one instance, relied on an inaccurate reading of the evidence in the service medical records. Because the prior examinations were determined to be inadequate, new examinations are required. VA regulations provide that where "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 (2009). Where the Board makes a decision based on an examination report which does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination.'" Goss v. Brown, 9 Vet. App 109, 114 (1996). A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded a VA examination by a physician with the appropriate expertise, to determine the current severity of his service-connected bilateral pes planus. The examiner should render all findings needed to rate bilateral pes planus under the appropriate rating criteria, to include whether the disability results in weight bearing line over or medial to the great toe, inward bowing of the Achilles tendon, pain on manipulation and use of the feet, marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement or severe spasm of the Achilles tendon on manipulation not improved by orthopedic shoes or appliances. The examiner should also comment on whether there is pain on manipulation and use of the feet (bilateral or unilateral). The examiner is advised that the Veteran and his spouse, a nurse, who testified at an April 2006 DRO hearing, are competent to report his symptoms and history, and such reports must be considered in formulating any opinions. Finally, considering all of the above, the examiner should provide an assessment of the overall severity of the service-connected bilateral foot disability. 2. The Veteran should be provided a VA examination by a physician, preferably, an orthopedist, to determine the etiology of any current shoulder disability. The examiner should provide an opinion as to whether the Veteran's bilateral shoulder disability, if any, at least as likely as not (50 percent probability or more) began in service or is otherwise the result of a disease or injury in service. For purposes of this opinion a current disability is one shown at any time since the Veteran submitted his current claim. The examiner must discuss the diagnosis provided by Dr. Older in August 2005 private treatment records. 3. Veteran should receive an examination by a physician or audiologist with appropriate expertise to determine the etiology of current tinnitus. The examiner should provide an opinion as to whether tinnitus, at least as likely as not (50 percent probability or more) began in service or is otherwise the result of a disease or injury in service. For purposes of this opinion a current disability is one shown at any time since the Veteran submitted his current claim. A thorough rationale is required for any conclusion provided. The examiner(s) should review the claims folder, including a copy of this remand, and the examiner(s) should note that the claims folder, including this remand, was reviewed. The examiner(s) is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered in formulating any opinions. Any and all testing (i.e., x-ray studies, MRI) necessary to make a determination in these matters should be conducted. 4. The Veteran should be provided a VA examination by a physician with the appropriate expertise to determine the etiology of the Veteran's claimed headache disorder. The examiner should provide an opinion as to whether any current disorder at least as likely as not (50 percent probability or more) began in service or are otherwise the result of a disease or injury in service, specifically, the 1987 in-service nose injury when the Veteran was hit with a tractor trailer door on the bridge of the nose. The examiner should note the Veteran complained of both dizziness and headache after that injury. The examiner is cautioned to review the service treatment records which indicated headaches and dizziness post-accident. A thorough rationale is required for any conclusion provided. The examiner(s) should review the claims folder, including a copy of this remand, and the examiner(s) should note that the claims folder, including this remand, was reviewed. The examiner(s) is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered in formulating any opinions. Any and all testing (i.e., x-ray studies, MRI) necessary to make a determination in these matters should be conducted. 5. The Veteran should be provided a VA examination by a physician with the appropriate expertise to determine the etiology of the Veteran's claimed low back disability. The examiner should provide an opinion as to whether the low back condition at least as likely as not (50 percent probability or more) began in service or is otherwise the result of a disease or injury in service, to include the Veteran's 1982 in-service motorcycle accident. The examiner should further determine if the Veteran's low back disability is due to or caused by a service- connected disability, i.e., pes planus or a cervical spine condition. A thorough rationale is required for any conclusion provided. The examiner(s) should review the claims folder, including a copy of this remand, and the examiner(s) should note that the claims folder, including this remand, was reviewed. The examiner(s) is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered in formulating any opinions. Any and all testing (i.e., x-ray studies, MRI) necessary to make a determination in these matters should be conducted. 6. The Veteran should be provided a VA examination by a physician with the appropriate expertise, preferably an orthopedist, to determine the etiology of any current knee disability. The examiner should provide an opinion as to whether current knee disabilities at least as likely as not (50 percent probability or more) began in service or are otherwise the result of a disease or injury in service, to include the Veteran's 1982 in-service motorcycle accident. For purposes of this opinion a current disability is one shown at any time since the Veteran submitted his current claim. The examiner should further determine if the Veteran's bilateral knee disability is caused by a service- connected disability, i.e., pes planus or a cervical spine condition. A thorough rationale is required for any conclusion provided. The examiner(s) should review the claims folder, including a copy of this remand, and the examiner(s) should note that the claims folder, including this remand, was reviewed. The examiner(s) is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered in formulating any opinions. Any and all testing (i.e., x-ray studies, MRI) necessary to make a determination in these matters should be conducted. 1. If any benefit sought on appeal remains denied, the RO/AMC should issue a supplemental statement of the case and then return the case to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter or 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. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ Mark D. Hindin 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) (2009).