Citation Nr: 1323921 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 10-06 935 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent for chronic low back strain. 2. Entitlement to an evaluation in excess of 10 percent for tendonitis in the right ankle. 3. Entitlement to an evaluation in excess of 10 percent for tendonitis in the left ankle. 4. Entitlement to service connection for a right knee disability. 5. Entitlement to service connection for a left knee disability. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1985 to July 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2009 and September 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In February 2012, the Veteran presented personal testimony before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. In April 2012, the Board remanded the Veteran's claims. The Appeals Management Center (AMC) continued the previous denial of the claims in a March 2013 supplemental statement of the case (SSOC). Accordingly, the Veteran's VA claims folder has been returned to the Board for further appellate proceedings. The Board additionally notes that in a January 2012 rating decision, the RO denied the Veteran's claim of entitlement to an evaluation in excess of 10 percent for service-connected bilateral pes planus. The RO, by way of a November 2012 letter, acknowledged receipt of a notice of disagreement with respect to the decision. The letter informed him that the case would be reviewed, that additional evidence might be requested, and, if the appeal was not granted, a Statement of the Case would be issued. The Board notes that in Manlincon v. West, 12 Vet. App. 238 (1999), the United States Court of Appeals for Veterans Claims (the Court) held that where a notice of disagreement (NOD) is filed but a SOC has not been issued, the Board must remand the claim to the agency of original jurisdiction so that a SOC may be issued. Here, however, a review of the Veteran's Virtual VA claims folder shows that the RO has acknowledged receipt of the Veteran's NOD and informed him of the steps that would be taken as a result of its filing. Accordingly, the facts of this case differ from those of Manlincon v. West, and as such, remand of this claim is not warranted. The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. 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. REMAND Private treatment records Following the issuance of the March 2013 SSOC, the Veteran submitted signed and dated VA Forms 21-4142 Authorization and Consent to Release Information in order for private treatment records from Dr. Hutchison dated March 2013 and from Delts Medical Group dated September and October 2009 pertaining to his bilateral ankle disabilities to be obtained. He also submitted signed and dated VA Forms 21-4142 in order for private treatment records from Dr. Gangwish dated October 2008 to October 2009 pertaining to his knees and lower back and from Dr. Teach dated February 2013 for his back to be obtained. Although private treatment records from Dr. Gangwish are associated with the Veteran's claims folder, it appears that the request for these records was dated February 2009. Moreover, treatment records from Dr. Teach are associated with the Veteran's claims folder; however, there are no treatment records dated after April 2012. Accordingly, these outstanding private treatment records should be obtained and associated with the Veteran's claims folder. The Board adds that in February 2013, the Veteran submitted a signed and dated VA Form 21-4142 in order for private treatment records from Dr. Cole dated January and February 2013 pertaining to his lower back to be obtained. The AMC thereafter requested records from Dr. Cole and also informed the Veteran of such. However, no response from Dr. Cole is of record. Pertinently, the AMC did not inform the Veteran of the negative response with regard to obtaining these private treatment records pursuant to 38 C.F.R. § 3.159(e). The Board also notes that the Veteran has indicated treatment for his disabilities currently on appeal from a Dr. Reedy. The record is unclear as to whether treatment from Dr. Reedy was from a VA facility. As such, on remand, the Veteran should be requested to clarify whether treatment from Dr. Reedy was from a VA facility. VA examination for low back and right ankle disabilities The Veteran reports his disabilities have increased in severity since the April 2012 VA examinations. In a statement dated in February 2013, he reported using a special desk chair to support his back and use of a handicap parking sticker at his place of employment. He further stated that his current medication has not helped his back and ankle disabilities and that he has considered using painkillers. He also stated in March 2013 that he was using a walking cane, however, he only reported use of a back brace as an assistive device at his April 2012 VA examination. As the Veteran's low back and bilateral ankle disabilities may have worsened since the April 2012 VA examination, a contemporaneous VA examination is warranted to ascertain the current severity of these disabilities. VA opinion for right and left knee disabilities The Veteran was afforded a VA examination in April 2012 as to the etiology of his right and left knee disabilities. However, the Board finds that the opinion rendered is inadequate. The April 2012 examiner conducted an interview of the Veteran as well as an examination and diagnosed the Veteran with bilateral patellofemoral syndrome. In a November 2012 addendum, another VA examiner reviewed the Veteran's claims folder and concluded that it is less likely than (less than 50 percent probability) that the Veteran's current right and left knee disabilities are related to his military service. The examiner's rationale was based on her finding that the Veteran's bilateral patellofemoral syndrome is a multifactorial condition which would not be caused by regular activity in the service. Moreover, the examiner found that there was no history of any specific trauma documented in the Veteran's claims folder. However, the Board notes that a service treatment record dated February 1999 documents the Veteran's treatment for bilateral knee pain and assessment of chronic retropatellar pain syndrome. A March 1999 service treatment record also notes the Veteran's complaints of bilateral knee pain and an assessment of rule out bilateral degenerative joint disease/patellofemoral syndrome. The Veteran also complained of bilateral knee pain during a May 1999 general medical examination and has submitted multiple statements regarding continuing bilateral knee pain following discharge from service. Crucially, there is no consideration of the Veteran's in-service treatment for bilateral knee pain or of his statements regarding a continuity of bilateral knee symptomatology in the November 2012 addendum. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC must attempt to obtain private treatment records from the following: a. Dr. Hutchison dated March 2013; b. Delts Medical Group dated September and October 2009; c. Dr. Gangwish dated after February 2009; d. Dr. Teach dated after April 2012; and e. Dr. Cole dated January and February 2013. The RO/AMC should also seek clarification from the Veteran as to whether treatment he received from a Dr. Reedy for his disabilities currently on appeal was from a VA facility. If the Veteran indicates that Dr. Reedy is a private treatment provider, records from Dr. Reedy should also be obtained. If necessary, the RO/AMC should request proper authorization from the Veteran prior to obtaining these records. If, after making reasonable efforts to obtain the records specifically identified above the RO/AMC is unable to secure same, the RO/AMC must notify the Veteran and (a) identify the specific records the RO/AMC is unable to obtain; (b) briefly explain the efforts that the RO/AMC made to obtain those records; and (c) describe any further action to be taken by the RO/AMC with respect to the claim. The Veteran must then be given an opportunity to respond. 2. Obtain any VA treatment records dated after October 2012 pertaining to the claims remanded herein. All attempts to secure this evidence must be documented in the claims folder. 3. Thereafter, schedule the Veteran for a VA examination for his service-connected low back, right ankle, and left ankle disabilities. The examiner's report should fully set forth all current complaints and pertinent clinical findings, and should describe in detail the presence or absence and the extent of any functional loss due to the Veteran's service-connected low back, right ankle, and left ankle disabilities as well as any objective neurological manifestations associated with the service-connected low back disability. A complete explanation for the opinion should be provided. Based on current examination of the Veteran as well as review of the evidence of record to include postservice treatment reports and prior physical examinations of the Veteran, the examiner should address whether pain or other manifestations occurring during flare-ups or with repeated use could significantly limit functional ability of the affected part. The examiner should portray the degree of any additional range of motion loss due to pain on use or during flare-ups. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached should be provided. If the examiner cannot provide an opinion without resorting to speculation, the examiner must explain why such is the case. 4. Refer the case to the November 2012 VA examiner (or another clinician) for an addendum with respect to the Veteran's claim of entitlement to service connection for right and left knee disabilities. The claims file and a copy of this remand should be forwarded to the examiner. If the clinician indicates that she cannot respond to the Board's question without examination of the Veteran, such should be afforded to the Veteran. Based on a review of the claims folder, the clinician should provide an opinion as to whether it is at least as likely as not (i.e., 50 percent or greater degree of probability) that the Veteran's currently diagnosed bilateral patellofemoral syndrome began during service or is causally linked to any incident of service, to include treatment for bilateral knee pain in 1999. The examiner is requested to provide a thorough rationale for any opinion expressed and note that the claims file has been reviewed in conjunction with the opinion. The examiner's attention is directed to the Veteran's in-service complaints of and treatment for bilateral knee pain in February, March, and April 1999 as well his reports of continuity of bilateral knee pain following his discharge from service. 5. When the development requested has been completed, the case should be reviewed on the basis of additional evidence. If the benefits sought are not granted, the Veteran 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 Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See 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). _________________________________________________ S.S. TOTH 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).