Citation Nr: 1311488 Decision Date: 04/08/13 Archive Date: 04/19/13 DOCKET NO. 09-32 407 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to a compensable disability rating for residuals of a fracture of the left fifth metatarsal. 2. Entitlement to an initial rating greater than 20 percent for low back strain. 3. Entitlement to an initial rating greater than 10 percent for left hip strain. 4. Entitlement to an initial rating greater than 10 percent for left knee strain. 5. Entitlement to service connection for a right hip disability, to include as due to service-connected residuals of a fracture of the left fifth metatarsal. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from November 1973 to November 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which granted, in pertinent part, the Veteran's claims of service connection for low back strain, assigning a 20 percent rating effective March 7, 2008, left hip strain, assigning a 10 percent rating effective March 7, 2008, and for left knee strain, assigning a 10 percent rating effective March 7, 2008. The RO also denied a claim of service connection for a right hip disability, to include as due to service-connected residuals of a fracture of the left fifth metatarsal. This matter also is on appeal from a November 2008 rating decision in which the RO denied the Veteran's claim for a compensable disability rating for his service-connected residuals of a fracture of the left fifth metatarsal. 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 on his part. REMAND The Veteran contends that his service-connected residuals of a fracture of the left fifth metatarsal, low back strain, left hip strain, and left knee strain all are more disabling than currently evaluated. He also contends that he incurred a right hip disability during active service or, alternatively, his service-connected residuals of a fracture of the left fifth metatarsal caused or contributed to his current right hip disability. The Board finds that additional development is required before any of the underlying claims can be adjudicated on the merits. With respect to the Veteran's service-connected residuals of a fracture of the left fifth metatarsal, the Board notes that, in October 2012 correspondence, the Veteran's service representative essentially contended that this disability is more disabling than currently evaluated and requested that the Veteran be scheduled for an updated VA examination. A review of the claims file and the Veteran's Virtual VA paperless claim file shows that the most recent VA examination for residuals of a fracture of the left fifth metatarsal occurred in June 2010. The Board notes that VA's duty to assist under the VCAA includes obtaining an examination or medical opinion when necessary. The Court has held that when a Veteran alleges that his service-connected disability has worsened since he was examined previously, a new examination may be required to evaluate the current degree of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Given the Veteran's contentions, and given the length of time which has elapsed since his most recent VA examination in June 2010, the Board finds that, on remand, he should be scheduled for updated VA examination to determine the current nature and severity of his service-connected residuals of a fracture of the left fifth metatarsal. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. With respect to the Veteran's higher initial rating claims for low back strain, left hip strain, and left knee strain, and his service connection claim for a right hip disability, the Board notes initially that the RO did not certify any of these claims for appellate review when it forwarded the Veteran's claims file for appellate review in February 2013. Having reviewed the claims file, the Board finds that, although the Veteran's notice of disagreement with the August 2008 rating decision (which granted service connection for low back strain, left hip strain, and for left knee strain, and denied service connection for a right hip disability) is not of record in the Veteran's physical claims file or in his Virtual VA paperless claim file, the RO issued a Statement of the Case (SOC) to the Veteran on these claims in November 2009. He perfected a timely appeal on these claims later that same month. Thus, as noted in the Introduction, these claims are currently before the Board. The Board also notes that, in seeking higher initial ratings for his service-connected low back strain, left hip strain, and left knee strain, the Veteran essentially contends that each of these disabilities is more disabling than currently evaluated. A review of the claims file shows that the Veteran's most recent VA examination for his service-connected low back, left hip, and left knee disabilities occurred in May 2008. The Board again notes that VA's duty to assist under the VCAA includes obtaining an examination or medical opinion when necessary. The Court has held that when a Veteran alleges that his service-connected disability has worsened since he was examined previously, a new examination may be required to evaluate the current degree of impairment. See Snuffer, 10 Vet. App. at 403. Given the Veteran's contentions, and given the length of time which has elapsed since his most recent VA examination in May 2008, the Board finds that, on remand, he should be scheduled for updated VA examination to determine the current nature and severity of his service-connected low back strain, left hip strain, and left knee strain. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. The Board notes further that, with respect to the Veteran's service connection claim for a right hip disability, to include as due to service-connected residuals of a fracture of the left fifth metatarsal, it is not clear whether he experiences a current right hip disability which could be attributed to active service. At his most recent VA examination for a right hip disability in May 2008, although physical examination disclosed limited right hip motion on range of motion testing, no diagnosis of a right hip disability was rendered. The May 2008 VA examiner also stated: [The Veteran] does have chronic pain and presents as a very reliable patient as well as an appropriate clinical examination and observation of somebody who is having his gait offset and this is flaring his pain in his other joints. It is rare for a patient, however, at this age to have significant hip pathology and whereas none of his other joints that are involved have transmitted to the right, unaffected side. There are no other causative factors concerning the left hip. Therefore, it is as least as likely as not [that] his left hip condition is caused by or the result of his left foot injury. It is not clear from a review of this opinion and rationale whether, in fact, the Veteran experienced a right hip disability in May 2008 which was attributable to active service. The May 2008 VA examiner also did not address the Veteran's contention that his service-connected residuals of a fracture of the left fifth metatarsal caused or aggravated (permanently worsened) his claimed right hip disability. The Board notes in this regard that a Veteran generally is competent to report what happened to him during active service and his current complaints of a claimed disability. See, for example, Layno v. Brown, 6 Vet. App. 465, 470 (1994), and Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The Board also notes in this regard that service connection may be granted if there is a disability at some point during the claim even if it later resolves or becomes asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007). In light of the foregoing, the Veteran should be scheduled for updated VA examination to determine the nature and etiology of his claimed right hip disability. The RO/AMC also should attempt to obtain the Veteran's up-to-date VA and private treatment records. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask him to identify all VA and non-VA clinicians who have treated him for his service-connected disabilities or for a right hip disability since his service separation. Advise the Veteran not to resubmit any records already provided to VA. Obtain all VA treatment records which have not been obtained already. Once signed releases are received from the Veteran, obtain all private treatment records which have not been obtained already. A copy of any records obtained, to include a negative reply, should be included in the claims file. 2. Schedule the Veteran for appropriate in-person examination to determine the current nature and severity of his service-connected residuals of a fracture of the left fifth metatarsal. The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted. The Veteran should be asked to provide a complete medical history, if possible. Based on a review of the claims file and the results of the Veteran's physical examination, and the Veteran's statements regarding the development and treatment of his claimed disorder, the examiner should address the following: a) Identify all residuals/symptoms of the fracture of the left fifth metatarsal. In this regard, state whether the Veteran has arthritis and/or a neuroma as a residual of the left fifth metatarsal. b) For each residual/symptom of the fracture of the left fifth metatarsal, state the severity, the level of impairment caused by such. c) State whether the residuals/symptoms of the fracture of the left fifth metatarsal, more nearly approximate a moderate, moderately severe, or severe foot injury. In addressing this, the examiner should discuss the July 2010 finding that the Veteran had evidence of malunion or nonunion of the tarsal or metatarsal bones which was considered moderately severe. A complete rationale must be provided for any opinions expressed. The opinion should take into consideration the Veteran's medical history, medical records and sound medical principles. 3. Schedule the Veteran for appropriate VA examination(s) of his spine. The examination should be performed by a physician. The claims file and a complete copy of this REMAND should be reviewed in association with the examination. The examination report should indicate that this has been accomplished. All necessary studies and tests should be conducted. The examiner should identify all orthopedic and neurological findings related to the Veteran's service-connected lumbar spine strain disability and fully describe the extent and severity of those manifestations. The examiner should conduct range of motion testing of the lumbar spine. The examiner should state whether there is any pain, weakened movement, excess fatigability or incoordination on movement. The examiner should also address whether there is additional range of motion loss due to: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. If feasible, these determinations should be expressed in terms of the degree of additional range of motion loss. The examiner is asked to describe whether pain significantly limits functional ability during flare-ups or when the lumbar spine is used repeatedly. All limitation of function must be identified. If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. The examiner should also determine whether the Veteran has favorable or unfavorable ankylosis of the thoracolumbar. The examiner should address whether the Veteran has intervetebral disc syndrome due to the service-connected low back strain. If so, the examiner should document the number of weeks, if any, during the past 12 months, that the Veteran has had "incapacitating episodes," defined as "a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician." With regard to any neurological disability resulting from this service-connected low back strain disability, the specific nerve(s) affected should be specified, together with the degree of paralysis (complete or incomplete) caused by the service-connected disability (e.g. mild, moderate, or severe). The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 4. Schedule the Veteran for appropriate in-person examination to determine the current nature and severity of his service-connected left hip strain and the nature and etiology of his right hip disability. The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted, including complete range of motion studies. The Veteran should be asked to provide a complete medical history, if possible. Based on a review of the claims file and the results of the Veteran's physical examination, and the Veteran's statements regarding the development and treatment of his claimed disorder, the examiner should identify all impairment caused by the service-connected left hip strain. The examiner should conduct range of motion testing of the left hip. The examiner should state whether there is any pain, weakened movement, excess fatigability or incoordination on movement. The examiner should also address whether there is additional range of motion loss due to: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. If feasible, these determinations should be expressed in terms of the degree of additional range of motion loss. The examiner is asked to describe whether pain significantly limits functional ability during flare-ups or when the left hip is used repeatedly. All limitation of function must be identified. If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. The examiner should state whether the Veteran's service-connected left hip strain is manifested by limitation of abduction of the left hip, motion lost beyond 10 degrees. The examiner should also determine whether the Veteran has favorable or unfavorable ankylosis of the left hip. The examiner also should opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a right hip disability, if diagnosed, is related to active service or any incident of service. The examiner should opine further whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a right hip disability, if diagnosed, was caused by the Veteran's service-connected residuals of a fracture of the left fifth metatarsal, low back strain, left hip strain, and/or left knee strain. A complete rationale must be provided for any opinions expressed. The examiner should opine further whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a right hip disability, if diagnosed, was aggravated (permanently worsened) by the Veteran's service-connected residuals of a fracture of the left fifth metatarsal, low back strain, left hip strain, and/or left knee strain. If aggravation is found, the examiner should identify that aspect of the disability which is due to aggravation. A complete rationale must be provided for any opinions expressed. 5. Thereafter, schedule the Veteran for a VA orthopedic examination of his left knee disability. The claims file and a complete copy of this remand should be reviewed in association with the examination. All necessary studies and tests should be conducted, including x-rays, if warranted. The examiner is asked to make the following medical determinations: (a) Identify all residuals attributable to the Veteran's service-connected left knee disability. (b) Provide the range of motion of the Veteran's left knee, i.e., flexion and extension. (c) Determine whether range of motion is reduced by weakness, fatigue, incoordination, swelling, deformity or atrophy of disuse, or pain. If pain on motion is found, the examiner should state whether this pain is debilitating, i.e. actually affects the normal working movements of the body such as excursion, strength, speed, coordination, or endurance. (d) If the examiner finds that pain actually causes limitation of motion as described above (as opposed to mere pain on motion that is not of sufficient severity to cause additional limitations) the examiner should state the additional degree of limitation in terms of degrees, if possible. (e) Determine whether (i) repetitive use or, , (ii) flare-ups would be productive of additional limitation of motion due to weakness, fatigue, incoordination, swelling, deformity or atrophy of disuse, or debilitating pain. If the Veteran's range of motion is likely to be further reduced by debilitating pain due to repetitive use or flare-ups, the examiner should so state and describe the additional degree of limitation in terms of degrees, if possible. (f) Determine whether there is objective evidence of lateral instability or recurrent subluxation of the left knee and if so, to what extent (i.e. slight, moderate, or severe in degree). The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 6. The Veteran should be given adequate notice of the requested examinations which includes advising him of the consequences of his failure to report to the examinations. If he fails to report to the examinations, then this fact should be noted in the claims file and a copy of the scheduling of examination notification or refusal to report notice, whichever is applicable, should be obtained by the RO and associated with the claims file. 7. Review all evidence received since the last prior adjudication and readjudicate the Veteran's claims. If the determination remains unfavorable to the Veteran, then the RO should issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issues. An appropriate period of time should be allowed for response by the Veteran and his service representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. 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). _________________________________________________ K.OSBORNE 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).