Citation Nr: 1306594 Decision Date: 02/26/13 Archive Date: 03/01/13 DOCKET NO. 05-02 888 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for degenerative disc disease of the lumbar spine. 2. Entitlement to service connection for a foot disorder, to include bilateral plantar fasciitis, metatarsalgia, and pes cavus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Katz, Counsel INTRODUCTION The Veteran served on active duty from February 1980 to April 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND I. Lumbar Spine Disability In October 2009, the Board remanded the Veteran's claim for entitlement to an initial rating greater than 20 percent for degenerative disc disease of the lumbar spine for a VA examination to determine the current severity of the service-connected disorder. Although the Veteran was provided with a VA examination in July 2010, review of the examination report reflects that it is inadequate upon which to base an appellate decision. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one). The Board observes that the private medical treatment records, the VA treatment records, and the April 2008 hearing testimony reflect the Veteran's regular and consistent statements that he has neurological symptoms associated with his service-connected low back disorder. In addition, there is medical evidence of diagnoses of lumbosacral radiculopathy and probable peripheral neuropathy. Further, the Veteran has regularly complained of numbness in the bilateral lower extremities, loss of bowel control, erectile dysfunction, and painful paresthesias in the soles of his feet with respect to his low back disorder. When determining the appropriate rating for spine disabilities, the regulations provide that separate evaluations are warranted for neurologic components of spine disorders. See 38 C.F.R. § 4.71a, Note (1) (2012). However, the July 2010 VA examiner did not provide a neurological examination when conducting the examination of the lumbar spine and did not address whether the Veteran's neurological symptoms are related to his service-connected low back disorder. Accordingly, the Veteran should be provided with a new VA spine examination which adequately addresses all of the symptoms of his service-connected lumbar spine disability. II. Bilateral Foot Disorder In October 2009, the Board remanded the Veteran's claim for entitlement to service connection for a bilateral foot disorder to provide the Veteran with a VA examination addressing the etiology of his bilateral foot disorder. The Veteran underwent a VA examination in July 2010, but an opinion was not provided because the Veteran's claims file was not available at that time. In a March 2011 addendum, the examiner who conducted the July 2010 examination indicated that the claims file was reviewed for the purpose of providing an opinion regarding the claimed foot disability, diagnosed as bilateral foot peripheral neuropathy. The examiner indicated that a review of the Veteran's service records did not suggest that his foot disorder was related to service and concluded that the Veteran's foot disorder was "less likely than not related to military service or to his service connected condition (s)." In a March 2012 remand, the Board found that the March 2011 opinion addressing the relationship between the diagnosed plantar neuropathy and fibrositis or any other service-connected disability to be inadequate, as it did not provide any explanation or rationale in support of the opinion. Also, the Board found that the examiner did not discuss the June 2004 VA examination and give an opinion as to whether the Veteran manifested any foot disorder at that examination that was no longer present, or as to the likelihood that any such resolved disorder was etiologically related to or aggravated by a service-connected disability. The VA examiner who provided the July 2010 VA examination and March 2011 addendum provided another addendum in April 2012. The VA examiner noted that the record suggested that the Veteran had some type of neuropathy of unknown etiology despite extensive work-up, and that it is possible that the Veteran still had some complaints of plantar fasciitis that had been overshadowed by the peripheral neuropathy, but that an opinion as to that matter would be mere speculation. Additionally, the examiner stated that there was no evidence that the Veteran's foot condition was caused or aggravated by the fibrositis or any other service-connected disability. The April 2012 addendum does not comply with the remand instructives set forth in the Board's March 2012 remand. In its March 2012 remand, the Board noted that the March 2011 addendum did not provide the requested explanation and rationale to support the opinion that the Veteran's bilateral foot disorder is not related to his service-connected fibrositis or any other service-connected disability, and requested that the examiner provide the underlying explanation and rationale. However, in the April 2012 addendum, the examiner merely again stated that there was no evidence that the Veteran's foot condition was caused or aggravated by fibrositis or any other service-connected disability without providing the requested supporting explanation and rationale. A remand by the Board imposes upon the Secretary of the VA a duty of compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). Further, although the examiner stated that an opinion as to whether the Veteran manifested any foot disorder at the June 2004 examination that was no longer present, or as to the likelihood that any such resolved foot disorder was etiologically related to or aggravated by a service-connected disability would require resorting to mere speculation, the examiner did not provide the reasons why an opinion would require speculation. See Jones v. Shinseki, 23 Vet. App. 382 (2010) (absence of clarity and/or contradiction in the VA examiner's findings and opinion and the examiner's statement that an opinion of causal link between the claimed condition and a service-connected condition could not be made without resorting to speculation required further development by VA prior to Board adjudication). Therefore, the Board finds the April 2012 addendum to be inadequate, and the Veteran should be provided with a new VA examination, provided by a new examiner, addressing the etiology of his bilateral foot disorder. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for VA spine and neurological examinations to determine the current severity of his service-connected lumbar spine disability. The claims folder and a copy of this Remand must be provided to and reviewed by the examiner. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. As to all information requested below, a complete rationale for all opinions must be provided. The examiner must determine the range of motion of the Veteran's thoracolumbar spine, in degrees, noting by comparison the normal range of motion of the thoracolumbar spine. The VA examiner must specifically state whether there is any favorable or unfavorable ankylosis in the thoracolumbar spine, and must also indicate the normal range of motion of the thoracolumbar spine for comparison. It must also be determined whether there is weakened movement, excess fatigability, or incoordination attributable to the service-connected lumbar spine disability, expressed in terms of the degree of additional range of motion loss or favorable or unfavorable ankylosis due to any weakened movement, excess fatigability, or incoordination. Finally, an opinion must be stated as to whether any pain found in the spine could significantly limit functional ability during flare-ups or during periods of repeated use, noting the degree of additional range of motion loss or favorable or unfavorable ankylosis due to pain on use or during flare-ups. The examiner must also report any associated neurological complaints and findings attributable to the Veteran's service-connected lumbar spine disorder. Of particular note, the claims file reflects that the Veteran has regularly reported numbness in the bilateral lower extremities, loss of bowel control, erectile dysfunction, and painful paresthesias in the soles of his feet with respect to his low back disorder. The examiner must perform any indicated tests, to include nerve conduction and/or electromyography studies, to evaluate any reported radiating pain, and state whether the any reported neurological symptoms are related to his service-connected lumbar spine disorder. The examiner must also state whether the Veteran has intervertebral disc syndrome; if so, the examiner must state whether the Veteran experiences incapacitating episodes, as defined by 38 C.F.R. § 4.71a, and the frequency and total duration of such episodes over the course of the past 12 months. Finally, the examiner must provide an opinion as to whether the Veteran's subjective reports of his symptoms are consistent with the objective clinical findings and must describe functional limitations resulting from the Veteran's low back disorder. 2. Provide the Veteran with a new VA examination of the feet, performed by a different examiner than the examiner who provided the July 2010 VA examination, the March 2011 addendum, and the April 2012 addendum. Ask the examiner to review the Veteran's claims file and the prior examination reports of record, as well as the Veteran's lay statements and testimony before the Board. Then, the examiner should provide a diagnosis of each current disorder of the feet and provide a description of the manifestations of each current foot disorder. For each foot disorder, the examiner should provide an opinion as to whether each diagnosed disability is at least as likely as not (a 50 percent probability or greater) related to the Veteran's military service, or related on a secondary basis to any of the Veteran's service-connected disabilities, including fibrositis. When addressing whether any diagnosed foot disabilities are related to a service-connected disability the examiner is asked to address both whether the service connected disability caused the foot problems, as well as whether the service connected disability aggravated the foot disability. Aggravation is defined as a permanent worsening beyond the natural progression of the disease. Additionally, the examiner should review the June 2004 VA examination report and state whether the Veteran manifested a foot disorder at that examination which is no longer present. If a foot disorder manifested at the June 2004 examination has resolved and is no longer present, the examiner should provide a diagnosis for the resolved disorder, and provide an opinion as to the likelihood that the disorder which has resolved was manifested in service or was etiologically related to or aggravated by a service-connected disability. The examiner must provide a thorough explanation and rationale for all opinions provided. If the examiner cannot provide a requested opinion without resorting to speculation, the examiner must state that fact, and provide the reasons why an opinion would require speculation. 3. The RO must notify the Veteran that it is his responsibility to report for all scheduled examinations 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 (2012). 4. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the Veteran's claims must be readjudicated. If any benefit sought on appeal remains denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given the opportunity to respond thereto. The appeal must then be returned to the Board for appellate review. The appellant 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. 2012). _________________________________________________ ROBERT C. SCHARNBERGER 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) (2012).