Citation Nr: 1309717 Decision Date: 03/22/13 Archive Date: 04/01/13 DOCKET NO. 10-42 037 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for left foot stress fracture. 2. Entitlement to service connection for right foot stress fracture. 3. Entitlement to an increased rating for service-connected left knee medial ligament strain, currently rated as 10 percent disabling. 4. Entitlement to a compensable rating for service-connected left mid tibia status post fracture with stress fracture lateral malleolus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran had active duty from January 1991 to October 1993. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. 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 The Veteran submitted his claims for service connection for "both feet" in March 2009. See letter from accredited representative. An accompanying VA Form 21-4138 shows that the Veteran alleged that he suffered stress fractures to both of his feet during basic training. He added that as a result he had problems with his toes. Review of the Veteran's service treatment records shows that the Veteran was seen in May 1991 for follow up treatment for stress fractures of both feet. Review of the Veteran's September 1993 discharge examination shows that a lower extremity disorder (either left or right), or complaints of such a disorder, was not documented. Post service medical records associated with the Veteran's claims file includes a July 1995 private medical record which shows a diagnosis of hallux valgus. An April 2009 VA outpatient treatment record includes diagnoses of status post right lapidus and hammertoe correction. In the course of a July 2009 VA joints examination the Veteran's feet were not examined. As there is evidence of treatment in service for bilateral stress fractures of the feet, and in light of the post service medical records, both private and VA, which relate to treatment afforded the Veteran for his feet, the Board finds that a VA examination is needed to obtain an opinion as to whether any current foot-related disorder is related to the symptoms seen in service. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Remand is also necessary concerning the two increased rating claims presently before the Board on appeal. The VA examiner who conducted the June 2009 examination does not appear to have reviewed the Veteran's claims file, in this case including the Veteran's service treatment records. To this, applicable regulations state that it is essential that, both in the examination and evaluation, each disability be viewed in relation to its history. See 38 C.F.R. § 4.1. In this regard, medical examinations generally should "take into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one." Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The fulfillment of the statutory duty to assist includes conducting a thorough and contemporaneous medical examination which takes into account the records of prior medical treatment so that the disability evaluation will be a fully informed one. See Hyder v. Derwinski, 1 Vet. App. 221 (1991); see also 38 C.F.R. § 3.326 (2012); VAOPGCPREC 20-95 (July 14, 1995) (a VA examiner must review a claimant's prior medical records when such a review is necessary to ensure a fully informed examination or to provide an adequate basis for the examiner's findings and conclusions). The Board parenthetically observes that the Veteran's accredited representative, as part of a January 2012 Appellant's Brief, requested that another VA examination be afforded the Veteran at which time the examiner had an opportunity to review the entire claims file. In this instance, it also appears to the Board that the July 2009 VA joints examination is stale as it was conducted more than three years ago. The Veteran is also advised that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Accordingly, the case is REMANDED for the following action: 1. Obtain the names and addresses of all medical care providers who treated the Veteran for foot, left knee or left ankle complaints since March 2009. After securing the necessary release, the RO should obtain these records. 2. After completion of the foregoing, schedule the Veteran for a VA podiatry examination to determine whether any current left and/or right foot disorder(s) was caused by military service. The claims file -- to include the Veteran's service treatment records -- must be made available to the examiner for review in connection with the examination. The examiner should conduct a thorough examination of the Veteran's feet and provide a diagnosis for any pathology found. Based on the examination and review of the record, the examiner must answer the following question: Is it at least as likely as not (50 percent or more probability) that any currently diagnosed disorder of either foot began during active service or is causally linked to any incident of active duty? The examiner is requested to provide a rationale for any opinion provided. 3. Schedule the Veteran for an appropriate VA examination to determine the current severity of his left knee and left ankle disabilities. The claims file must be made available to the VA examiner, and the examiner should review the file prior to the examination. All appropriate tests and studies, including X-rays and range of motion studies of the left knee and left ankle, reported in degrees, should be accomplished. All findings should be made available to the examiner prior to the completion of his or her report, and all clinical findings should be reported in detail. The examiner must render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the service-connected left knee and left ankle. If pain on motion is observed, the examiner must indicate the point at which pain begins. In addition, after considering the Veteran's documented medical history and assertions, the examining physician must indicate whether, and to what extent, the Veteran experiences - concerning both his left knee and left ankle -- likely functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. The examiner must identify all impairments affecting the left knee and left ankle. The examiner should specifically indicate whether arthritis is present and, if so, whether this is supported by X-ray findings. The examiner must report whether there is recurrent subluxation or lateral instability of the left knee and, if so, whether such is best characterized as "slight," "moderate," or "severe." The examiner should also indicate whether, in the left knee, there is ankylosis, dislocation or removal of cartilage, impairment of the tibia or fibula, or genu recurvatum. It should also be indicated whether ankylosis of the left ankle is present. The examiner also, if left ankle limitation of motion is found, should opine as to whether the lack of motion is more appropriately characterized as "moderate" or "marked." 4. The Veteran is hereby notified that it is his responsibility to report for any scheduled VA examination 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). In the event that the Veteran does not report for any scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 5. Thereafter, the RO/AMC must review the claims folder and ensure that the foregoing development actions, as well as any other indicated development, have been conducted and completed in full. If the response is deficient in any manner, the RO/AMC must implement corrective procedures. Stegall v. West, 11 Vet. App. 268 (1998). 6. Thereafter, and following any other indicated development, readjudicate the issues on appeal. If to any extent the benefits sought are not granted in full, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to ensure due process. The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. No action is required of the appellant until he is notified. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ M. E. LARKIN 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).