Citation Nr: 1340302 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 10-30 098 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a compensable rating for right tibia stress fracture. 2. Entitlement to a compensable rating for left tibia stress fracture. 3. Entitlement to service connection for right knee condition. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1997 to August 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas that denied service connection for right knee condition and continued noncompensable ratings for left and right tibia stress fractures. By way of background, an April 2000 rating decision reduced the evaluations of the right and left tibia stress fractures from 10 percent to noncompensable. The Veteran did not file a notice of disagreement (NOD) and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of the rating decision. See 38 C.F.R. § 3.156(b); see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the April 2000 rating decision became final based on the evidence then of record. 38 U.S.C.A. §§ 7104, 7105 (West 2002 & Supp. 2012); 38 C.F.R. § 20.1105 (2013). The issue of entitlement to service connection for right knee condition was not certified for appeal. However, subsequent to the June 2009 rating decision denying the claim for service connection, the Veteran timely filed an NOD in September 2009. The VA did not issue a statement of the case (SOC) until April 9, 2012, nearly three years later. In the interim, the Veteran submitted a Substantive Appeal in July 2010 that specifically identified "right knee" as one of the issues being appealed and contained specific argument as to the errors made by the RO. In Archbold v. Brown, 9 Vet. App. 124 (1996), the United States Court of Appeals for Veterans Claims (Court) held that the issuance of an SOC was not an absolute requirement for the acceptance of a Substantive Appeal. Moreover, in Percy v. Shinseki, 23 Vet. App. 37 (2009), the Court held that a timely Substantive Appeal was not a jurisdictional requirement for the Board's consideration of a Veteran's claim. Here, following his September 2009 NOD, the Veteran submitted a VA Form 9 that meets the criteria for a Substantive Appeal. See Tomlin v. Brown, 5 Vet. App. 355 (1993). As in the case of Archbold, the statements of the Veteran regarding this issue contains sufficient information to qualify as a Substantive Appeal pursuant to 38 C.F.R. § 20.202. Therefore, the Board finds that the Veteran did perfect a timely appeal and the Board has jurisdiction of the issue of entitlement to service connection for right knee condition. The Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. A review of the documents in such file reveals that they do not contain any additional evidence relevant to the issues on appeal. The issue of entitlement to vocational rehabilitation has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Specifically, in a September 2009 submission, the Veteran stated, "I would like to continue attending college on the vocational rehabilitation plan." Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. In the decision below, the Board grants a 10 percent rating each for left and right tibia stress fractures. However, additional development is required to determine whether even higher ratings are warranted. Therefore, the issues of entitlement to evaluations in excess of 10 percent for service-connected left and right tibia stress fractures, as well as entitlement to service connection for right knee condition, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. For the entire appeal period, the Veteran's right tibia stress fracture has been productive of functional loss due to painful motion. 2. For the entire appeal period, the Veteran's left tibia stress fracture has been productive of functional loss due to painful motion. CONCLUSIONS OF LAW 1. The criteria for a rating of at least 10 percent for right tibia stress fracture have been met, effective February 12, 2009. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5262 (2013). 2. The criteria for a rating of at least 10 percent for left tibia stress fracture have been met, effective February 12, 2009. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5262 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. Separate diagnostic codes (DCs) identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is reviewed when making disability evaluations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The provisions of 38 C.F.R. § 4.59 relating to painful motion are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). Service connection is in effect for right and left tibia stress fractures, each rated noncompensably disabling effective July 1, 2000. The Veteran contends that these disabilities are more severe than the currently assigned rating and that he is entitled to higher ratings. The Veteran was provided with a VA bone examination in March 2009 with addenda in April 2009 and August 2009. At the March 2009 examination, the Veteran reported chronic pain that resulted in difficulty going up and down stairs, running, standing for long periods, and sleeping. Affected areas were sensitive to touch. The pain increased with activity two to three times per week. These flare-ups were caused by climbing stairs and long periods of standing or walking. The Veteran reported "major impairment[;] every time I walk or stand [for] long periods, I experience chronic pain." Physical examination yielded evidence of angulation, tenderness, and painful motion. The VA examiner concluded that the Veteran was able to perform all activities of daily living (ADLs) but his endurance was limited by his bilateral tibia stress fractures. At the April 2009 VA examination, the Veteran reported bilateral anterior tibia pain along the junction of the distal and middle thirds of the tibia. The examiner stated that the Veteran's ADLs and occupation were unaffected, but then noted that he had pain when using stairs, and when he worked for Brinks Armored it was painful to get in and out of the truck. The VA examiner concluded that his stress fractures had healed without sequalae. The August 2009 addendum consisted solely of bone imaging studies and did not address functional limitation. As noted above, the provisions of 38 C.F.R. § 4.59 relating to painful motion are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton. In this case, both the Veteran and the record raise the issue of painful motion resulting from the Veteran's service-connected disabilities. The March 2009 VA examiner clearly noted painful motion and functional loss manifested as decreased endurance. The April 2009 VA examiner's opinion that there was no sequalae or impact on ADLs from the tibia stress fractures is contradicted by his own notation of pain when using stairs or getting in and out of the Brinks truck. The Board therefore finds his rationale to be inadequate and less probative than the March 2009 VA examination report. Thus, the Board finds that the Veteran's service-connected right and left tibia stress fractures have been productive of functional loss due to painful motion and 10 percent ratings are warranted. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca; Burton. However, as noted in the Introduction, additional development is necessary before a decision can be made as to whether even higher ratings are warranted at any point during the appeal. Thus, the issues of entitlement to evaluations in excess of 10 percent for right and left tibia stress fractures are being remanded and are addressed in the Remand section below. ORDER Effective February 12, 2009, a 10 percent rating for right tibia stress fracture is granted, subject to the law and regulations governing payment of monetary benefits. Effective February 12, 2009, a 10 percent rating for left tibia stress fracture is granted, subject to the law and regulations governing payment of monetary benefits. REMAND For the following reasons, the Veteran's claims for entitlement to service connection for right knee condition, and entitlement to ratings in excess of 10 percent for right and left tibia stress fractures must be remanded. Relevant to all remanded claims, the only treatment records in the claims file are dated in February 1998. On remand, the Veteran should be given the opportunity to identify any private or VA providers who have since treated him for bilateral tibia stress fractures and/or right knee condition. The AOJ must attempt to obtain any identified outstanding relevant records. Higher ratings The Board notes that additional development is necessary to determine whether ratings in excess of 10 percent are warranted for the Veteran's right and left tibia stress fractures. The Veteran's right and left tibia stress fractures were most recently assessed more than three years ago during the 2009 VA examinations. In a July 2012 submission, the Veteran's representative stated, "the veteran contends that these disabilities have worsened to a point where [he] is experiencing increased pain and discomfort. The veteran's contentions are that his disabilities have progressively worsened and have not improved." Thus, a new examination is necessary to ascertain the current severity of the Veteran's disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Right knee condition The Board may order an examination when the record shows that the Veteran has a current disability, indicates that this disability may be associated with the Veteran's active service, and does not contain sufficient evidence for the Board to make a decision on the issue. McLendon. The record shows evidence of a current right knee disability. In addition to competent and credible lay reports of right knee pain, at the March 2009 examination, physical examination of the right knee showed: mild varus deformity, tenderness, lack of endurance, painful motion, limitation of flexion, positive McMurray's Test, and guarding of movement. The August 2009 bone scan showed bilateral increased uptake within the patella suggesting suprapatellar bursitis. The Veteran has consistently reported that his right knee pain developed after he had to change his walk to accommodate his service-connected bilateral tibia stress fractures. However, there is no medical opinion of record addressing the etiology of his right knee symptoms. Accordingly, the Board finds a remand is necessary to obtain a VA examination with medical opinion as to whether any current right knee disability is related to service, including as secondary to service-connected bilateral tibia stress fractures. Accordingly, the case is REMANDED for the following actions: 1. Ask the Veteran to identify any additional private or VA providers who have treated him for bilateral tibia stress fractures and/or right knee condition since February 1998. After securing any necessary authorization from the Veteran, all identified treatment records should be obtained, physically or electronically. In light of changes to 38 U.S.C.A. § 5103A(2)(B), the RO must make two attempts for any relevant private treatment records or make a formal finding that a second request for such records would be futile. See Pub. L. No. 112-154, § 505, 126 Stat. 1165, 1193 (2012). All development efforts should be associated with the claims file. The Veteran should 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. Notify the Veteran that he may submit lay statements from himself and from other individuals that have first-hand knowledge, and/or were contemporaneously informed of, the nature, extent and severity of his leg symptoms as well as any in-service and post-service right knee symptoms. He should be provided an appropriate amount of time to submit this lay evidence. 3. Schedule the Veteran for an appropriate VA examination to determine the current severity of his bilateral tibia stress fractures. The entire claims file (paper and electronic), including any newly obtained treatment records, must be made available to and reviewed by the examiner and all necessary tests should be conducted. All indicated tests should be performed. All findings, along with a fully articulated medical rationale for all opinions expressed should be set forth in the examination report. 4. Schedule the Veteran for a VA examination to determine the nature, extent, onset and etiology of any right knee disability found to be present. The claims file should be reviewed by the examiner in conjunction with the examination. Any necessary tests should be conducted. After examining the Veteran and reviewing the claims file, the examiner should: a). Identify all right knee disabilities found to be present; b) State whether it is at least as likely as not that any identified right knee disability: 1) is related to or had its onset in service, or 2) is caused, at least in part, by the Veteran's service-connected bilateral tibia stress fractures, or 3) is aggravated, at least in part, by the Veteran's service-connected bilateral tibia stress fractures? The examiner should consider the Veteran's lay statements regarding the onset of his right knee symptoms. A complete rationale for any opinion expressed and conclusion reached should be set forth in a legible report. 5. Then adjudicate whether ratings in excess of 10 percent are warranted for the Veteran's right and left tibia disabilities and whether service connection is warranted for right knee disability. If the benefits sought are not granted in full, the Veteran and his representative should be furnished a supplemental statement of the case and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. 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). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs