Citation Nr: 1335355 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 09-49 797 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for patellofemoral syndrome of the right knee (hereinafter 'right knee disability'). 2. Entitlement to an evaluation in excess of 10 percent for patellofemoral syndrome of the left knee (hereinafter 'left knee disability'). 3. Entitlement to an evaluation in excess of 10 percent for a lumbar spine disability. 4. Entitlement to an evaluation in excess of 10 percent for bilateral plantar fasciitis. 5. Entitlement to an evaluation in excess of 10 percent for gastroresophageal reflux disease (GERD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1979 to June 2006. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified at a Board hearing at the RO in Waco, Texas in March 2013. This transcript has been associated with the file. 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 At his March 2013 Board hearing the Veteran testified that his service-connected disabilities had worsened since his most recent VA examinations in 2011. On remand he should be afforded new examinations. Accordingly, the case is REMANDED for the following action: 1. Obtain all of the Veteran's outstanding VA treatment records for the period from March 2012 through the present. All information which is not duplicative of evidence already received should be associated with the claims file. If the Agency of Original Jurisdiction (AOJ) is unable to obtain any of the relevant records sought, it shall notify the Veteran that it has been unable to obtain such records by identifying the specific records not obtained, explaining the efforts used to obtain those records, and describing any further action to be taken with respect to the claim. 38 U.S.C. § 5103A(b)(2) (West 2002). 2. Ask the Veteran to provide authorization to obtain any outstanding, relevant private records. The Veteran should be asked to include addresses for all identified providers. After securing the necessary authorization, these records should be requested. If any records are not available, the Veteran should be notified of such. 3. After completing the above, schedule the Veteran for VA examinations to determine the severity of his service-connected disabilities. The entire claims file must be reviewed by the examiner in conjunction with the opinion. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner should indicate on the examination report that (s)he has reviewed the folder in conjunction with the examination. a) For the Veteran's bilateral knee disabilities the examiner must conduct any appropriate interviews and clinical testing to respond to the inquiries, including x-rays of the Veteran's joints. i) The examiner must report the complete range of motion for the bilateral knees. In reporting the results of range of motion testing, the examiner must identify any objective evidence of pain and the specific limitation(s) of motion, if any, accompanied by pain. To the extent possible, the examiner must assess the degree of severity of any pain. The examiner should also discuss any evidence of instability or locking of the bilateral knees. ii) Tests of joint movement against varying resistance must be performed. The extent of any incoordination, weakened movement, and excess fatigability on use must also be described by the examiner. The examiner must assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. iii) The examiner must also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups (if the Veteran describes flare-ups), and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. If feasible, the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. b) For the Veteran's lumbar spine disability the examiner must conduct any appropriate interviews and clinical testing to respond to the inquiries, including x-rays of the Veteran's spine. i) The examiner must report the complete range of motion for the spine. In reporting the results of range of motion testing, the examiner must identify any objective evidence of pain and the specific limitation(s) of motion, if any, accompanied by pain. To the extent possible, the examiner must assess the degree of severity of any pain. ii) Tests of joint movement against varying resistance must be performed. The extent of any incoordination, weakened movement, and excess fatigability on use must also be described by the examiner. The examiner must assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. iii) The examiner must also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups (if the Veteran describes flare-ups), and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. If feasible, the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. iv) The examiner must describe all present neurological manifestations of the Veteran's lumbar spine disability, including nerve disorders of the lower extremities. The clinician must further clarify whether a diagnosis of intervertebral disc syndrome (IVDS) applies, and if so indicate the frequency and severity of any IVDS exacerbations and/or incapacitating episodes. v) The examiner must provide findings as to whether there is muscle spasm, guarding, or localized tenderness which does or does not result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. c) The examiner should also evaluate the Veteran's bilateral plantar fasciitis to determine the current severity of this disability. In addition to all observed findings, the examiner should specifically state whether the great toe is dorsiflexed, there is some limitation of dorsiflexion at ankle, or definite tenderness under metatarsal heads. d) The examiner should also evaluate the Veteran's GERD to determine the current severity of this disorder. In addition to all observed findings, the examiner should specifically state whether there is persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. e) The examiner must also provide an opinion concerning the impact of the Veteran's service-connected disabilities on his ability to work to include whether the Veteran is unemployable because of his service-connected disabilities, alone or acting together. f) The examiner is requested to provide a fully reasoned explanation for his or her opinions, based on his or her clinical experience, medical expertise, and established medical principles. 4. After the above has been completed, the AOJ must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 5. After the development requested above has been completed to the extent possible, the record should again be reviewed. If any benefit sought on appeal remains denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. 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). _________________________________________________ JOHN Z. JONES 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) (2013).