Citation Nr: 1333655 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 08-21 964 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for intervertebral disc degeneration of the lumbar spine. 2. Entitlement to an initial rating in excess of 10 percent for internal derangement of the right shoulder. 3. Entitlement to an initial rating in excess of 10 percent for right knee patellofemoral syndrome. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran had active duty service from August 1987 to November 2007, for which he earned a Combat Action Ribbon. He served in Iraq. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), in Buffalo, New York, which granted service connection for lumbar spine, right shoulder and right knee disabilities, and assigned respective 20 percent, 10 percent and noncompensable evaluations for those disabilities, effective December 1, 2007. In February 2013, the Appeals Management Center (AMC) issued a rating decision that increased the initial rating for right knee patellofemoral syndrome to 10 percent effective December 1, 2007. In his July 2008 substantive appeal the Veteran requested a Board hearing before a Veterans Law Judge. He withdrew that request in December 2008. This matter was remanded in January 2010, January 2011, August 2012, and June 2013 for further development. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. This appeal is REMANDED to the RO via the AMC. VA will notify the Veteran if further action is required. REMAND The Board has repeatedly remanded this appeal for efforts to obtain examinations in conformity with legal requirements. Following the Board's most recent remand, a VA Medical Center incorrectly informed the AMC that the Veteran had cancelled the examinations. The AMC in turn adjudicated the claims on the basis that the Veteran had failed to report. The Veteran's representative provided the Board with copies of the examination reports showing that they were in fact conducted in July 2013. This evidence was constructively before the AMC when it adjudicated the claims. Bell v. Derwinski, 3 Vet. App. 611 (1992). More importantly, as the representative has pointed out, the examination report is inadequate. The nurse practitioner who conducted the examinations provided contradictory and incomplete findings; and ultimately stated that he could not provide necessary findings as to functional impairment on the basis of a one to three hour examination without resort to speculation. Cf. DeLuca v. Brown, 6 Vet. App. 321 (1993); 38 C.F.R. §§ 4.40, 4.45 (20013). The examiner offered no explanation for his inability to provide necessary findings required by court decisions. Cf. Jones v. Shinseki, 23 Vet. App. 122 (2009). A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand orders. It imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268 (1998) Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded a VA examination of his right shoulder, right knee, and back. The examiner should review the claims folder, including relevant records in Virtual VA. Given the nurse practitioner's reports of an inability to provide necessary findings, this examination must be provided by a physician. The examiner should report the ranges of motion of the Veteran's right shoulder, right knee, and back, in degrees. The examiner should report whether there is additional limitation due to weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner should construe the Veteran's complaints of weakness, stiffness, pain, limited function, and limited range of motion during physical activity as flare-ups. The examiner must express the additional functional limitation (either noted on examination or as credibly reported by the Veteran) in terms of the degree of additional limitation due to weakened movement, excess fatigability, incoordination, flare-ups, or pain. If the examiner finds the Veteran's reports to not be credible, the examiner should provide reasons for this finding. If the examiner is not able to answer these questions without resort to speculation, the reasons for this inability should be provided. a. With regards to the Veteran's back, the examiner is also directed to specifically comment on the following: (1) Whether there are muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. (2) Whether there is any ankylosis, of the lumbar spine, and if so, its angle. (3) Whether the Veteran has intervertebral disc syndrome of the lumbar spine, and if so, identify the number of incapacitating episodes involving physician-prescribed bed rest, if any, within the last 12-month period. The examiner must also identify any associated neurological deformities associated with the service-connected lumbar spine disorder, to include any associated bladder or bowel impairment. The severity of each neurological sign and symptom must be reported, if such exists, as mild, moderate, moderately severe, or severe in nature, and whether such represents symptomatology that more closely approximates incomplete or complete paralysis of the affected nerves. b. With regards to the Veteran's right shoulder, the examiner should also specifically comment on the following: (1) Whether there is dislocation of, malunion of, or nonunion of the Veteran's right clavicle or scapula; and, if so, whether there is any associated instability or loose movement of the right shoulder. (2) Whether there is any ankylosis of the right shoulder, and if so, its angle. (3) Whether there is any impairment of the Veteran's right humerus, including: (A) loss of head of (flail shoulder); (B) nonunion of (false flail joint); (C) fibrous union of; (D) malunion of, and if so, whether such is a slight, moderate or marked deformity; or, (E) recurrent dislocation at the scapulohumeral joint, and if so, whether there are frequent or infrequent episodes and whether there is guarding of arm movements throughout all movements or just at shoulder level. If the examiner opines that any of the above questions cannot be resolved without resort to speculation, then reasons why this is so must be provided. The examiner should also report whether there is additional evidence that would permit the necessary opinion to be provided. c. With regards to the Veteran's right knee, the examiner should report the presence or absence of lateral instability or recurrent subluxation. If instability is present, the examiner must specifically state whether such instability is slight, moderate, or severe. If instability is not found, the examiner should state as such. (d) If the examiner opines that any of the above questions cannot be resolved without resort to speculation, then reasons why this is so must be provided. The examiner should also report whether there is additional evidence that would permit the necessary opinion to be provided. (e) If the physician is unable to provide opinions with regard to functional impairment due to the length of the examination; the Veteran should be afforded a period of hospitalization for observation and evaluation. 5. The agency of original jurisdiction (AOJ) should review the addendums and any examination reports to insure that they contain the findings and opinions sought in this remand. 6. If any benefit sought on appeal remains denied, issue a supplemental statement of the case, before returning the case to the Board, if otherwise 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). _________________________________________________ Mark D. Hindin 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).