Citation Nr: 1334905 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 08-07 952 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for residuals of left ankle injury. 2. Entitlement to an initial evaluation in excess of 10 percent for patellofemoral pain syndrome, right knee. 3. Entitlement to an initial evaluation in excess of 10 percent for patellofemoral pain syndrome, left knee. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active military duty from August 2002 to March 2007. These matters are before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The RO in Detroit, Michigan, currently has jurisdiction of the claims. 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 The Veteran was afforded VA examinations previously, but the Board noted in June 2010, and again in June 2013, that the most recent VA examination addressing the claimed disabilities was in each instance three years old. The Board in June 2013 additionally noted that the Veteran had asserted that his service-connected disabilities were much more severe that that shown upon most recent examination. The Board accordingly required that new examinations be obtained. The Veteran reported at the September 2013 examinations that he had flare-ups of his left ankle as well as flare-ups of his bilateral knees. However, the examiner failed to note the frequency or duration of these flare-ups, and failed to address the extent of impairment of functioning due to these flare-ups. When the examiner noted that the Veteran reported flare-ups of his left ankle, rather than addressing their nature or extent, the examiner merely noted, apparently addressing treatment for flare-ups, "Rest and elevate and uses ice." The examiner also noted that the Veteran had a "lot of pain and flare ups" in his knees due to his work as an assistant principal involving walking up and down stairs and between buildings, but failed to address how much impairment in functioning resulted from this pain or these flare-ups. The Board's June 2013 remand expressly required that the examiner "render an opinion as to the extent to which the Veteran experiences functional impairments, weakness, excess fatigability, lack of coordination, or pain due to repeated use or flare-ups, etc." (emphasis added) In these respects, the September 2013 examinations addressing the Veteran's left ankle and bilateral knees are inadequate, requiring yet another examination. Board remand requirements must be substantially fulfilled, pursuant to Stegall v. West, 11 Vet. App. 268 (1998). D'Aries v. Peake, 22 Vet. App. 97 (2008). Substantial fulfillment of these requirements for the examiner to address the extent of functional impairments due to pain due to repeated use or flare-ups has not been achieved. The Board in its June 2013 remand additionally required that the RO or AMC obtain recent treatment records from the VA facility in Battle Creek, Michigan, as well as the Veteran's complete treatment records from the Central Texas Healthcare System. (The Board then noted that the Veteran had submitted incomplete records of treatment for the left ankle at the Central Texas Healthcare System.) It appears from a review of the records contained within the Virtual VA, and from the listing of evidence received as stated within the September 2013 supplemental statement of the case (SSOC), that this development was adequately completed. Accordingly, the case is REMANDED for the following action: 1. The RO must again contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims. Based on his response, any additional VA or private treatment records must be obtained and associated with the claims file, with the Veteran's assistance, as appropriate. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. All attempts to secure this evidence must be documented in the claims file by the RO. If the RO is unable to secure any of the identified records, the RO must notify the Veteran and (a) identify the information the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain that information; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that the Veteran is ultimately responsible for providing information. The Veteran and his representative must then be given an opportunity to respond. 2. The Veteran must be afforded an orthopedic examination to determine the current severity of his service-connected left ankle, left knee, and right knee disabilities. This should be conducted by an examiner other than the one who conducted the September 2013 examinations of the Veteran's knees and left ankle for compensation purposes, to avoid medical pre-judgment. The examiner is to be advised that the prior examinations in September 2013 for compensation purposes are inadequate because while the examiner noted that the Veteran had pain and flare-ups in the knees and the left ankle, the examiner failed to address the frequency, duration, or severity of flare-ups, or the effect on knee and ankle functioning of the pain and flare-ups. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. All indicated testing must be conducted, including radiographic examination and a thorough orthopedic examination of the Veteran's left ankle, left knee, and right knee. The orthopedic examiner must conduct full range of motion studies on all joints listed above. The examiner must first record the range of motion on clinical evaluation, in terms of degrees with a goniometer. If there is clinical evidence of pain on motion, the examiner must indicate the specific degree of motion at which such pain begins. The same range of motion studies must then be repeated after at least 3 repetitions and after any appropriate weight-bearing exertion. Then, after reviewing the Veteran's complaints and medical history, the examiner must render an opinion as to the extent to which the Veteran experiences functional impairments, such as weakness, excess fatigability, lack of coordination, or pain due to repeated use or flare-ups, etc. Objective evidence of loss of functional use can include the presence or absence of muscle atrophy and/or the presence or absence of changes in the skin indicative of disuse due to any service-connected musculoskeletal disorder. The examiner must also report any neurological findings due to any service-connected musculoskeletal disorder. Any opinion provided must include an explanation of the basis for the opinion. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain why an opinion cannot be provided without resort to speculation. The report must be typed. 3. The RO must notify the Veteran that it is his responsibility to report for all VA examinations scheduled, and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158 , 3.655 (2013). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. Copies of all documentation notifying the Veteran of any scheduled VA examination must be placed in the Veteran's claims file. 4. The RO must then readjudicate the claims and if any claim on appeal remains denied, the Veteran and his representative must be provided a supplemental statement of the case. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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). _________________________________________________ U. R. POWELL 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).