Citation Nr: 1337661 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 09-35 983 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a bilateral knee disability, to include as secondary to service-connected disabilities. 2. Entitlement to a compensable rating for residuals of a left femur stress fracture. 3. Entitlement to a compensable rating for residuals of a right femur stress fracture. 4. Entitlement to a compensable rating for residuals of a left middle metatarsal stress fracture. REPRESENTATION Veteran represented by: Illinois Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Veteran and D.S. ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The appellant is a Veteran who served on active duty for training (ACDUTRA) from September 2006 to April 2007. These matters are before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Chicago, Illinois Department of Veterans Affairs (VA) Regional Office (RO). In March 2012, the case was remanded for the Veteran to be scheduled for a Travel Board hearing. In September 2012, a Travel Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. In March 2013, the case was remanded for additional development. This appeal was processed using the paperless Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if action on her part is required. REMAND In its March 2013 remand, the Board instructed the RO to arrange for an orthopedic examination of the Veteran to determine whether or not she has any knee disability (and if so, its likely etiology) and to assess the severity of her residuals of stress fractures of both femurs and the left middle metatarsal. Such examination was conducted in June 2013. Regarding the knees, the examiner was specifically asked to identify (by medical diagnosis) each disability entity of either knee found; if no knee disability was diagnosed, the examiner was asked to reconcile that conclusion with the Veteran's service discharge examination diagnosis of bilateral patellofemoral pain syndrome. On June 2013 knee examination, range of motion testing revealed limitation of motion in both knees. The knees were not x-rayed. Nevertheless, the examiner determined that the Veteran had no objective knee disability. Furthermore, the examiner did not (as was requested) reconcile the absence of a current knee diagnosis with the knee diagnosis rendered on service discharge examination. Therefore, the June 2013 knee examination is nonresponsive to the Board's remand, and is inadequate for rating purposes, and a new examination must be scheduled. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination or opinion, it must provide an adequate one); see also Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Regarding the stress fractures of both femurs and the left middle metatarsal, the examiner was specifically asked to: (a) elicit from the Veteran all related current complaints (and alleged impairment of function), and ask her to identify the sources and nature of all treatment she is currently receiving; (b) conduct a thorough physical examination identifying all right and left femur and left middle metatarsal pathology found; expressly indicate whether or not there is arthritis at any of the stress fracture sites; describe the nature and severity of any (and all) related functional limitations (e.g., of motion, on standing, and their effect on everyday and occupational activities); and note whether or not there are any restrictions due to pain or on use, and whether the disability is such as to have periods of exacerbation (and if so, the expected nature and severity of manifestations during periods of exacerbation); and (c) specifically comment on the Veteran's self-reports of symptoms and associated impairment (indicating whether they are consistent with the clinical picture presented on examination). At the June 2013 thigh examination, the femurs were not x-rayed (and thus, no findings regarding arthritis could be rendered). The examiner did not offer a diagnosis as to the femurs. [The Board notes that on June 2013 lower leg examination, the diagnoses included past stress fractures in the bilateral tibias.] Furthermore, the examiner failed to ask the Veteran (as requested) to identify her current sources of treatment, and failed to specifically comment (as requested) on the Veteran's self-report of symptoms and associated impairment. Therefore, the Board has determined that the June 2013 thigh examination is inadequate, and a new examination must be scheduled. See Barr, 21 Vet. App. at 303, 311-12; see Stegall, 11 Vet. App. at 268, 271. On June 2013 foot examination, the Veteran reported that she used a cane regularly as a normal mode of locomotion. No range of motion testing was performed. X-rays reportedly showed a stress fracture in the right foot; nevertheless, the examiner diagnosed stress fracture of the left middle metatarsal. Furthermore, the examiner failed to (as requested) ask the Veteran to identify her current treatment providers, failed to (as requested) describe the nature and severity of any (and all) related functional limitations, and failed to note (as requested) whether or not there are any restrictions due to pain or on use, and whether the disability is such as to have periods of exacerbation. Therefore, the June 2013 foot examination is inadequate, and a new examination must be scheduled. See Barr, 21 Vet. App. at 303, 311-12; see Stegall, 11 Vet. App. at 268, 271. Accordingly, the case is REMANDED for the following: 1. The RO should arrange for an orthopedic examination of the Veteran to determine whether or not she has any knee disability (and if so, its likely etiology) and assess the severity of her residuals of stress fractures of both femurs and the left middle metatarsal. The Veteran's entire record (to include the claims file with this remand and Virtual VA) must be reviewed by the examiner in conjunction with the examination. Based on review of the record and examination of the Veteran, the examiner must provide opinions that respond to the following: Regarding the knees: (a) Please identify (by medical diagnosis) each disability entity of either knee found. If no knee disability is diagnosed, please reconcile that conclusion with the Veteran's service discharge examination diagnosis of bilateral patellofemoral pain syndrome. (b) As to any/each knee disability entity diagnosed, please identify the most likely etiology. Specifically, is it at least as likely as not (a 50% or better probability) that such was incurred or aggravated during ACDUTRA or was caused or aggravated (the opinion must specifically discuss aggravation if a knee disability is diagnosed) by the service connected residuals of stress fractures of the femurs and the left middle metatarsals. Regarding the stress fractures of both femurs and the left middle metatarsal: (a) The examiner should elicit from the Veteran all related current complaints (and alleged impairment of function), and ask her to identify the sources and nature of all treatment she is currently receiving. (b) The examiner should conduct a thorough physical examination identifying all right and left femur and left middle metatarsal pathology found. It should be expressly indicated whether or not there is arthritis at any of the stress fracture sites. The examiner must describe the nature and severity of any (and all) related functional limitations, e.g., of motion, on standing, and their effect on everyday and occupational activities. The examiner must note whether or not there are any restrictions due to pain or on use, and whether the disability is such as to have periods of exacerbation (and if so, the expected nature and severity of manifestations during periods of exacerbation). (c) The examiner must specifically comment on the Veteran's self-reports of symptoms and associated impairment (indicating whether they are consistent with the clinical picture presented on examination). The examiner must explain the rationale for all opinions, citing to supporting clinical data, as appropriate. 2. The RO should ensure that all development sought is completed (as specifically instructed), arrange for any further development suggested by additional evidence received, and then review the record and readjudicate the claims on appeal. If any remains denied, the RO should issue an appropriate supplemental statement of the case (SSOC) and afford the Veteran and her representative the opportunity to respond. The case should then be returned to the Board. 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 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). _________________________________________________ GEORGE R. SENYK 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).