Citation Nr: 1337523 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 12-01 713 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE 1. Entitlement to an initial rating in excess of 10 percent for residuals of shin splints with chondromalacia of the left knee. 2. Entitlement to an initial rating in excess of 10 percent for residuals of shin splints with chondromalacia of the right knee. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD H. Papavizas, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1995 to July 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which granted service connection for residuals of shin splints with chondromalacia of the left and right knees and assigned initial 10 percent ratings, effective February 10, 2009. Jurisdiction of the Veteran's claims file has subsequently been transferred to the RO in New York, New York. During the course of the appeal, a November 2011 rating decision determined that there was clear and unmistakable error in the assignment of the original effective date with respect only to the Veteran's left knee disability and, therefore, the effective date for service connection for residuals of shin splints with chondromalacia of the left knee (and thus, the initial 10 percent rating) was corrected to March 8, 2002. In his January 2012 substantive appeal (VA Form 9), the Veteran requested a Board hearing before a Veterans Law Judge sitting at the RO. However, in an April 2012 document, he withdrew his request for a Board hearing. 38 C.F.R. § 20.704(e) (2013). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. See 38 U.S.C.A.§ 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c) (2013). As an initial matter, the Board finds that a remand is necessary in order to afford the Veteran a VA examination so as to determine the current nature and severity of his bilateral residuals of shin splints with chondromalacia of the left and right knees. In this regard, the Board observes that he was last examined by VA in January 2010. Since such examination, the Veteran has alleged that his bilateral knee disabilities have increased in severity. Specifically, in his January 2012 substantive appeal (VA Form 9), he indicated that he has chronic stress fractures in both knees and legs, is unable to bend his knees, experiences "frequent locking pain into the joints," and has swelling of the shins. He also asserted that his tibia is impaired and that, in both of his legs, flexion is limited to 15 degrees and extension is limited to 20 degrees. In this regard, the Board notes that, at the January 2010 VA examination, his range of motion of the bilateral knees was from zero to 135 degrees. Therefore, as the evidence suggests that the Veteran's bilateral knee disabilities may have increased in severity since the January 2010 VA examination, a remand is necessary in order to schedule him for an appropriate VA examination in order to assess the current nature and severity of such service-connected disabilities. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Furthermore, the Board notes that the Veteran is service-connected for residuals of shin splints with chondromalacia of the bilateral knees. Such disabilities are currently evaluated under the rating criteria for orthopedic disabilities, 38 C.F.R. § 4.71a, Diagnostic Code 5262-5260, relevant to impairment of the tibia and fibula and limitation of flexion. However, it is unclear whether the Veteran has additional symptoms that may be more appropriately rated under the rating criteria relevant to evaluating muscle group injuries, 38 C.F.R. § 4.73. Therefore, upon examination, the examiner should identify the nature and severity of all manifestations of the Veteran's shin splints with chondromalacia of the left and right knees, to include both orthopedic and muscle group symptoms and, in the readjudication of the claims, the agency of original jurisdiction should specifically consider whether separate ratings are warranted under 38 C.F.R. § 4.71a and 38 C.F.R. § 4.73. Additionally, the Board notes that there are no treatment records dated after March 2009 of record. Likewise, prior to November 2007, the most recent treatment records contained in the claims file are dated in March 2002. Therefore, while on remand, the Veteran should be requested to identify any VA or non-VA healthcare provider who treated him for his left knee disability since March 2002 and his right knee disability since February 2009. Thereafter, all identified records should be obtained for consideration in his appeal. Finally, the Board notes that VA regulations provide that an appellant will be accorded full right to representation in all stages of an appeal by a recognized organization, attorney, agent, or other authorized person. 38 C.F.R. § 20.600. Furthermore, VA's Adjudication Procedures Manual (M21-1MR) provides that that a VA Form 646 (Statement of Accredited Representative in Appealed Case) gives an appellant's representative an opportunity to review the appeal and submit a statement regarding the appeal prior to certification to the Board. M21-1MR I.5.F.27.b. In the instant case, the Veteran's appointed representative, the Florida Department of Veterans Affairs, has not had an opportunity to provide a VA Form 646. Therefore, after readjudication of the case in a supplemental statement of the case, the case should be referred to the Florida Department of Veterans Affairs for completion of a VA Form 646 in accordance with M21-1MR I.5.F.27.d. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran identify any VA or non-VA healthcare provider who treated him for his left knee disability since March 2002 and his right knee disability since February 2009. Thereafter, all identified records should be obtained for consideration in his appeal. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After all outstanding records have been associated with the claims file, the Veteran should be afforded an appropriate VA examination to determine the current nature and severity of his shin splints with chondromalacia of the left and right knees. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should identify the nature and severity of all manifestations of the Veteran's shin splints with chondromalacia of the left and right knees, to include both orthopedic and muscle group symptoms. Regarding the orthopedic manifestations of such disabilities, the examiner's report should include range of motion studies for the knees and note any range of motion loss which is specifically attributable to pain. Note any additional functional loss with repetition. Discuss whether any functional loss is attributable to pain during flare-ups and then quantify in degrees the motion loss during such flare-ups. Note whether there is any less or more movement than is normal; weakened movement; excess fatigability; incoordination; and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. Categorize any instability and/or subluxation found to be present as slight, moderate, or severe. If any impairment of the tibia and fibula is shown, the examiner should indicate whether such results in marked, moderate, or slight knee or ankle disability. Regarding the muscle group manifestations of such disabilities, the examiner's report should include a discussion of the muscle group involved and whether such impairment is mild, moderate, moderately severe, or severe. The examiner should also discuss the impact such service-connected disabilities have on the Veteran's employability. A rationale for any opinion offered should be provided. 3. After completing the above, and any other development that may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the Veteran's claims should be readjudicated based on the entirety of the evidence, with consideration of whether separate ratings under orthopedic and muscle group diagnostic codes is warranted. If any claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. 4. Prior to recertification to the Board, the Veteran's representative, the Florida Department of Veterans Affairs, should be given an opportunity to complete a VA Form 646, or a statement in lieu thereof, in accordance with M21-1MR I.5.F.27.d. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ A. JAEGER 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).