Citation Nr: 1636019 Decision Date: 09/15/16 Archive Date: 09/27/16 DOCKET NO. 10-20 389 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a rating in excess of 10 percent for cervical spine degenerative disc disease at C4-C6. 2. Entitlement to a rating in excess of 10 percent for bilateral shin splints. REPRESENTATION Veteran is represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Banister, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1984 to April 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND With respect to the Veteran's increased rating claim for cervical spine degenerative disc disease, the record shows that the Veteran most recently underwent a VA examination in November 2015, during which the examiner noted minimal neck pain, which caused mild functional limitation. The examiner indicated that the Veteran did not have radiculopathy, but reported constant numbness in his left hand, which he planned to discuss with his orthopedist at his upcoming appointment. In June 2016, the Veteran submitted private treatment records showing complaints of severe neck pain, radiating pain, and numbness and tingling in both upper extremities, as well as diagnoses of severe degenerative disc disease at C5 through C7 and cervical stenosis. As there is an indication that the Veteran's cervical spine degenerative disc disease may have increased in severity since his most recent VA examination, the Board finds that a remand is necessary to conduct another examination to assess the current severity of the Veteran's cervical spine degenerative disc disease, including any associated neurological symptoms. See Green v. Derwinski, 1, Vet. App. 212, 124 (1991) (holding that VA's statutory duty to assist includes a thorough and contemporaneous medical examination). With respect to the Veteran's increased rating claim for bilateral shin splints, the Veteran testified at a May 2016 Board hearing that his symptoms have worsened since his most recent VA examination. Accordingly, a remand is necessary to conduct another examination to assess the current severity of the Veteran's bilateral shin splints. See id. The Veteran also testified to symptoms of worsening pain with standing and walking and buckling in his left knee and stated that he received treatment from a podiatrist for his shin splints. A review of the Veteran's podiatric treatment records reveals complaints of bilateral foot pain, which worsened with prolonged standing and walking, and diagnoses of bilateral plantar fasciitis, pes planus, and a valgus deformity. As the Veteran is not service connected for plantar fasciitis, pes planus, a valgus deformity, or any other disability of the foot or knee, to the extent possible, the VA examiner must indicate which symptoms are attributable to the Veteran's service-connected shin splints and which are associated with another disability. As the Veteran testified to missing work due to his disabilities, he should be asked to provide documentation verifying the missed work. Additionally, all outstanding relevant VA and private treatment records should be obtained. See 38 C.F.R. § 3.159(c) (2015). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide a statement from his employer or other documentation showing when or how much work he has missed due to these disabilities. 2. With the Veteran's assistance as necessary, the AOJ must attempt to obtain any outstanding relevant private treatment records dated June 2016 to the present and all outstanding VA treatment records dated November 2014 to the present. All attempts to secure this evidence must be documented in the claims file. If the AOJ is unable to secure any records, the AOJ must properly notify the Veteran. See 38 C.F.R. § 3.159(e). 3. Thereafter, the Veteran must be afforded an examination to determine the current severity of his service-connected cervical spine degenerative disc disease, to include any associated neurological symptoms. The electronic claims file, including any records received pursuant to this Remand, must be reviewed by the examiner. All indicated testing must be conducted, and all pertinent symptomatology must be reported in detail. The examiner must also specifically comment on the presence or absence of any upper extremity radiculopathy. The examiner is to report the range of motion measurements in degrees. Range of motion should be tested actively and passively, in weight bearing and non-weight bearing, and after repetitive use. The examiner should consider whether there is likely to be additional range of motion loss due to any of the following: (1) during flare-ups; and, (2) as a result of pain, weakness, fatigability, or incoordination. If so, the examiner is asked to describe the additional loss, in degrees, if possible. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. 4. The Veteran must be afforded an appropriate examination to determine the current severity of his service-connected bilateral shin splints. The electronic claims file, including any records received pursuant to this Remand, must be reviewed by the examiner. All indicated testing must be conducted, and all pertinent symptomatology must be reported in detail. To the extent possible, the examiner must specify which symptoms are attributable to the Veteran's service-connected shin splints and which symptoms are associated with another disability. In doing so, the examiner must address the Veteran's complaints of bilateral foot pain, difficulty with prolonged walking and standing, and knee buckling, as well as his diagnoses of plantar fasciitis, pes planus, and a valgus deformity. 5. After completing the above action, and any other development deemed necessary, the claims of entitlement to ratings in excess of 10 percent for cervical spine degenerative disc disease and bilateral shin splits must be readjudicated. If any benefit sought on appeal remains denied, a supplemental statement of the case must be provided to the Veteran. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate review. 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). (CONTINUED ON NEXT PAGE) 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 2014). _________________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board 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) (2015).