Citation Nr: 1320562 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 10-08 412A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a neck disorder. 2. Entitlement to service connection for a bilateral knee disorder. 3. Entitlement to an initial rating higher than 10 percent for lumbar degenerative joint disease and degenerative disc disease. 4. Entitlement to an initial compensable rating for bilateral pes planus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran served on active duty from September 1980 to September 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in February 2009 and December 2010 of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran appealed the decisions to the Board, and the case was referred to the Board for appellate review. A hearing was held in April 2012, by means of video conferencing equipment with the appellant in Winston-Salem, North Carolina, before the undersigned sitting in Washington, DC, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file. A review of the Virtual VA paperless claims processing system reveals documents that are either duplicative of the evidence of record or are not pertinent to the present appeal. 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 In April 2012 the Veteran testified that his neck disability and bilateral knee disability began during service when he went to airborne school and jumped from airplanes numerous times. He noted that after service he sought treatment for his knees in 1984 at the VA Medical Center in Fayetteville, North Carolina. He also stated that he sought private treatment from Dr. T.B.O. for his neck in 1984 after he was separated from service. He explained that Dr. T.B.O. has been his physician since 1984 and recently treated him for his back and feet problems. The Veteran's representative indicated that the Veteran would submit written authorization for VA to obtain private treatment records from 1984 onward. Subsequent to the Board hearing, the Veteran submitted written authorization for VA to obtain private treatment records from Dr. T.B.O. dated in January 1990 and prior to January 1990 for his back, neck, knees, and feet. These records have not been requested and must be sought. As the authorization was valid for 180 days a new authorization must be obtained from the Veteran. In light of his testimony that Dr. T.B.O. has been treating him for his orthopedic problems since 1984, the Veteran should be asked to authorize VA to obtain his private records from 1984 to the present. Further, the claims folder does not include the Veteran's 1984 VA treatment records for his knees and on remand an attempt needs to be made to obtain the records. On VA examination in October 2010 the examiner indicated that the Veteran was treated for his back and neck at the VA Medical Center in Fayetteville, North Carolina in March 2010 and these records also need to be associated with the file. In April 2012, the Veteran also testified that his service-connected low back disability and service-connected bilateral pes planus increased in severity since he was last examined in October 2010. He stated that he misses work four to five days per month due to back pain and had pain in his feet when walking about 70 percent of the time. As the evidence suggests a material change in the disabilities since the Veteran was last examined by VA, a reexamination is necessary under 38 C.F.R. § 3.327. The Board notes that on VA examination in October 2010, the examiner determined that there was regional sensory loss of unknown etiology. On reexamination, the examiner should address whether the Veteran has neurological impairment associated with his service-connected lumbar spine disorder. The DD 214 Form shows the Veteran was awarded a paratrooper badge. On VA examination in October 2010, the examiner provided a diagnosis of bilateral knee strain. As for the cervical spine, the examiner acknowledged that the onset of neck pain was during paratrooper training in service and provided a diagnosis of cervical degenerative joint disease and degenerative disc disease. However, the examiner concluded that the cervical spine disorder and bilateral knee disorder were not related to service as the Veteran was not treated for his knees and neck during service or within close proximity to service. As the examiner did not address the Veteran's paratrooper training during service in rendering the unfavorable opinions, the opinions are not adequate. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Therefore the Veteran should be scheduled for another VA examination to address the nature and etiology of his neck disorder and bilateral knee disorder. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to submit written authorization for VA to obtain his private treatment records dated from 1984 to the present from Dr. T.B.O. for his neck, back, knees, and feet. If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. Obtain the following records from the VA Medical Center in Fayetteville, North Carolina: treatment records dated in 1984 for the knees and records dated since March 2010. If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. 3.159(e). 3. Following receipt of any outstanding records, schedule the Veteran for a VA orthopedic examination to determine the etiology of his neck disorder and bilateral knee disorder. The entire claims file, to include a complete copy of this REMAND, must be provided to any specialist designated to examine the Veteran, and the examination reports should reflect consideration of the Veteran's documented medical history and assertions. Access to Virtual VA must be made available to the examiner for review, if needed. The examiner must: Offer an opinion, consistent with sound medical principles and in consideration of the Veteran's specific contentions, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran's neck disorder and bilateral knee disorder is related to service. In formulating the opinions the examiner is asked to comment on the effect the Veteran's paratrooper training in service had on his current neck disorder and bilateral knee disorder. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. The examiner is asked to provide a rationale for the opinions rendered. If the examiner is not able to provide an opinion, he or she should explain why. 4. Following receipt of any outstanding records, schedule the Veteran for a VA orthopedic examination to determine the nature, extent, and severity of his low back disorder. The examiner is asked to review the claims folder. Access to Virtual VA must be made available to the examiner for review, if needed. All indicated studies, including range of motion studies in degrees, should be performed. Tests of joint motion against varying resistance should be performed, and the extent of any incoordination, weakened movement, and excess fatigability on use should be described, with a notation of any additional functional impairment. The examiner should identify any objective evidence of pain or functional loss due to pain. The examiner is asked to express an opinion whether there would be additional limits on functional ability on repeated use or during flare-ups (if the Veteran describes flare-ups), and, if feasible, express this in terms of additional degrees of limitation of motion on repeated use or during flare-ups. If this is not feasible, the examiner should so state and provide an explanation why not. The examiner should indicate whether there is favorable or unfavorable ankylosis of the thoracolumbar spine, or unfavorable ankylosis of the entire spine. The examiner is asked to describe the frequency and duration of any incapacitating episodes due to the low back disability, requiring bed rest prescribed by a physician and treatment by a physician, over a 12 month period. The examiner must specifically address whether there is any neurological impairment associated with the service-connected lumbar degenerative joint disease and degenerative disc disease. If there is neurological impairment the examiner should identify the nerve or nerves involved and determine whether there is symptomatology reflective of either complete paralysis; or mild, moderate, moderately severe, or severe incomplete paralysis of the affected nerve or nerves. The examiner is asked to provide a rationale for all opinions rendered. If the examiner is not able to provide an opinion, he or she should explain why. 5. Following receipt of any outstanding records, schedule the Veteran for a VA examination to determine the nature, extent, and severity of his bilateral pes planus. Access to Virtual VA must be made available to the examiner for review, if needed. The examiner is asked to review the claims folder and address the following: a.)Whether there is moderate pes planus manifested by weight-bearing line over or medial to the great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet characteristic of bilateral pes planus. b.)Whether there is severe bilateral pes planus manifested by objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use and callosities characteristic of bilateral pes planus. The examiner is asked to provide a rationale for all opinions rendered. If the examiner is not able to provide an opinion, he or she should explain why. 6. After the development requested has been completed, review any examination and/or medical opinion report(s) to ensure that it is in complete compliance with the directives of this REMAND. The RO/AMC must ensure that each examiner documented his or her consideration of Virtual VA. If any report is deficient in any manner, the RO/AMC must implement corrective procedures at once. 7. The Veteran is hereby notified that it is his responsibility to report for any examination(s) and to cooperate in the development of his 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 aforementioned examination(s), 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. 8. After the above development has been completed, and any additional development deemed appropriate, readjudicate the claims on appeal. If any benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. 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). _________________________________________________ STEPHANIE L. CAUCUTT Acting 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).