Citation Nr: 1311984 Decision Date: 04/11/13 Archive Date: 04/19/13 DOCKET NO. 09-10 230 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for cervical spine degenerative disc disease. 2. Entitlement to an initial rating in excess of 10 percent for lumbar spine degenerative disc disease and thoracic spine anterior spondylosis. 3. Entitlement to an initial compensable rating for hiatal hernia with gastroesophageal reflux disease (GERD). 4. Entitlement to an initial compensable rating for right foot plantar fasciitis. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD A. Lindio, Counsel INTRODUCTION The Veteran had active service from June 2004 until January 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston Salem, North Carolina, which granted service connection for the disabilities listed on the title page and assigned initial noncompensable ratings, effective January 10, 2007 (the day after the Veteran's separation from service). In a March 2009 rating decision, the RO granted initial 10 percent disability ratings for the lumbar and cervical spine disabilities, effective January 10, 2007. The Veteran has not withdrawn his claims and is presumed to be seeking the maximum benefit allowed by law and regulation. AB v. Brown, 6 Vet. App. 35, 38 (1993). Therefore, those issues are characterized as shown on the first page of this decision. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Veteran claims that his service-connected disabilities are more severe than indicated by his current disability ratings (10 percent for the lumbar spine disability, 10 percent for the cervical spine disability, and noncompensable disability ratings for hiatal hernia with GERD and right foot plantar fasciitis). The Veteran's most recent VA examinations for his claimed disabilities occurred in November 2008, over four years ago. In a June 2010 VA Form 646, the Veteran's representative reported that all of the Veteran's disabilities had worsened in severity. Given the length of time since the last examinations and the report of a worsening of the disabilities, more current VA examinations are warranted for all the claims in order to make informed decisions regarding the Veteran's current levels of functional impairment and adequately evaluate his disabilities. See 38 C.F.R. § 3.159; see also Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995) (a new examination is appropriate when there is an assertion of an increase in severity since the last examination). The Board also notes that, in a May 2008 statement, the Veteran reported that he was receiving treatment for his disabilities at the VA Medical Center in Lake City/Gainesville, Florida. The most recent VA medical records associated with the claims file are dated in August 2008. Likewise, the Veteran submitted a private chiropractor report in July 2008. It is unclear whether additional private treatment records are available. Therefore, on remand, the Veteran should be given an opportunity to identify any healthcare provider who treated him for his service-connected cervical spine, lumbar spine, hiatal hernia with GERD, and right foot plantar fasciitis. Thereafter, all identified treatment records, to include VA treatment records from the VA Medical Center in Lake City/Gainesville, Florida dated from August 2008 to the present should obtained for consideration in the Veteran's appeal. Accordingly, the case is REMANDED for the following actions: 1. The Veteran also should be given an opportunity to identify any healthcare provider who treated him for his service-connected cervical spine, lumbar spine, hiatal hernia with GERD, and right foot plantar fasciitis. After securing any necessary authorization from him, obtain all identified treatment records, to include VA treatment records from the VA Medical Center in Lake City/Gainesville, Florida dated from August 2008 to the present. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After obtaining all outstanding treatment records, the Veteran should be afforded an appropriate VA examination to determine the current nature and severity of his cervical and thoracolumbar spine disabilities. The Veteran's claims folder must be reviewed by the examiner in conjunction with the examination. Any indicated evaluations, studies, and tests should be conducted. For each of the cervical and the thoracolumbar spines, the examiner's findings should specifically include: (a) ranges of motion; (b) the presence of any ankylosis; (c) whether there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis; (d) any associated objective neurologic abnormalities, including, but not limited to, radiculopathy of the upper and/or lower extremities, bowel, and/or bladder impairment and the severity of such, if present; and (e) whether the Veteran has intervertebral disc syndrome based on incapacitating episodes, including bedrest and treatment by a physician (and if so how often). The examiner should also note any additional functional loss on use due to pain on motion or due to flare-ups and, to the extent possible, expressed in terms of additional degrees lost on range of motion. The effects of the cervical and thoracolumbar disabilities on the Veteran's employability should also be addressed. A clear explanation for all opinions shall be provided, along with a discussion of the facts and medical principles. 3. After obtaining all outstanding treatment records, the Veteran should be afforded an appropriate VA examination to determine the current nature and severity of his service-connected hiatal hernia with GERD. The Veteran's claims folder must be reviewed by the examiner in conjunction with the examination. Any indicated evaluations, studies, and tests should be conducted. The examiner shall determine the extent, severity, and duration (including frequency) of any symptoms of the Veteran's hiatal hernia with GERD. The examiner should specify: (a) what symptoms the Veteran may have, including: pain, vomiting, material weight loss, hematemesis or melena, anemia, epigastric distress, dysphagia, pyrosis, regurgitation, and/or any accompanying substernal or arm or shoulder pain; and (b) whether the symptoms result in the impairment of the Veteran's health, including whether they would be best characterized as productive of considerable or severe impairment of health. The effects of hiatal hernia with GERD on the Veteran's employability should also be addressed. A clear explanation for all opinions shall be provided, along with a discussion of the facts and medical principles. 4. After obtaining any outstanding treatment records, the Veteran should be afforded an appropriate VA examination to determine the current nature and severity of his service-connected plantar fasciitis of the right foot. The Veteran's claims folder must be reviewed by the examiner in conjunction with the examination. Any indicated evaluations, studies, and tests should be conducted. The examiner should document the range of motion of the Veteran's right foot. He or she should note the nature and severity of all symptoms associated with right foot plantar fasciitis. If there are any other diagnoses pertaining to the right foot, the examiner should specifically indicate whether such are related to the Veteran's plantar fasciitis. The examiner should also indicate whether such disability is slight, moderate, moderately severe, or severe. The effects of right foot plantar fasciitis on the Veteran's employability should also be addressed. A clear explanation for all opinions shall be provided, along with a discussion of the facts and medical principles. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If a claim remains denied, the Veteran should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran 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). _________________________________________________ A. JAEGER 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).