Citation Nr: 1642796 Decision Date: 11/08/16 Archive Date: 12/01/16 DOCKET NO. 14-29 980 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for a bilateral ankle disorder, to include as secondary to service-connected lumbar spine and bilateral feet disabilities. 2. Entitlement to an initial evaluation in excess of 10 percent for lumbosacral strain. 3. Entitlement to an initial compensable evaluation for pes planus and plantar fasciitis of the left foot. 4. Entitlement to an initial increased evaluation of impingement syndrome of the right shoulder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Peters, Counsel INTRODUCTION The Veteran had active duty service from January to June 2003, and February 2008 to February 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2010 and October 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO), which awarded service connection for lumbar spine, right shoulder and bilateral pes planus and plantar fasciitis, and denied service connection for a bilateral ankle disorder, respectively. The Veteran timely appealed the above issues. The Veteran testified at a Decision Review Officer (DRO) hearing in October 2014 and at a Board hearing before the undersigned Veterans Law Judge in April 2016; transcripts of those hearing are associated with the claims file. The issues of service connection for a bilateral ankle disorder, and increased evaluations for the Veteran's lumbar spine and left foot disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT During his October 2014 DRO hearing, the Veteran indicated that he wished to withdraw his appeal respecting the issue for increased evaluation of his right shoulder disability; the hearing was reduced to a written transcript associated with the claims file. CONCLUSION OF LAW The criteria for withdrawal of the appeal of entitlement to an increased evaluation of impingement syndrome of the right shoulder have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn during the course of a Board hearing or in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202 (2015). Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.204 (2015). During his October 2014 DRO hearing, the Veteran indicated that he wished to withdraw his appeal respecting the issue for increased evaluation of his right shoulder disability; the hearing was reduced to a written transcript associated with the claims file. In light of this statement, the Board finds that there remain no allegations of errors of law or fact for appellate consideration as to that issue. Accordingly, the Board does not have jurisdiction to review that issue, and it is dismissed. ORDER The appeal as to the issue for initial increased evaluation of impingement syndrome of the right shoulder is dismissed. REMAND Regarding the Veteran's lumbar spine disability, the Veteran's last VA examination of that disability was in December 2014. The Board has reviewed that examination, and it does not appear that the examiner tested the Veteran's passive range of motion, tested the Veteran during weightbearing and non-weightbearing, or tested the opposing joint, if possible and appropriate. In a recent holding, the Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weightbearing and non-weightbearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). Thus, based on review of the most recent VA examination, the Board must find the December 2014 VA examination is inadequate. The lumbar spine claim must therefore be remanded in order to obtain an adequate and appropriate VA examination. See 38 C.F.R. § 4.59, Correia, supra; Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Turning to the left foot claim, the Veteran's last VA examination of that disability was also in December 2014. During his April 2016 hearing, the Veteran indicated that his left foot disability was worse since that examination; specifically, the Veteran indicated that he has numbness in the bottom of his feet and that he has to wear custom orthotics. Based upon the Veteran's testimony, the Board finds that a remand is necessary in order to obtain another VA examination of his left foot disability so that the severity of that disability may be adequately assessed. See Palczewski v. Nicholson, 21 Vet. App 174, 181-82 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (VA must provide a new examination where a veteran claims the disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current severity); Caffrey v. Brown, 6 Vet. App. 377, 381 (1995). Finally, regarding the bilateral ankle claim, the Veteran underwent a VA examination of that disability in October 2009, at which time the examiner diagnosed "Status post sprain injuries of both ankles without objective evidence of impairment at this time"; during that examination, the Veteran gave a history of several ankle sprain during service and the examiner noted a decreased range of motion of his ankles on examination. Based on that decreased range of motion finding, the examiner's finding of "no objective evidence of impairment" appeared to be questionable. The AOJ asked for a clarification and medical opinion; such was obtained in September 2010. The examiner opined that the decreased range of motion was due to the Veteran's surgical repair as a child of his congenital clubbed foot; the examiner did not discuss the Veteran's multiple claimed sprains during military service, or explain why the current loss of range of motion would be due to any pre-military surgery as opposed to the in-service strains. This lack of rationale is particularly troubling given that no documented loss of range of motion of the ankles existed on the Veteran's entrance examinations into military service. Consequently, the Board finds that the VA examination and obtained addendum medical opinion are inadequate in light of the internal inconsistencies and failure to discuss several pieces of relevant evidence; the bilateral ankle claim must therefore be remanded in order to obtain another VA examination and medical opinion which adequately and appropriately addresses the evidence of record. See Barr, supra; see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). On remand, any outstanding private and VA treatment records should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016) (where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain any and all VA treatment records from the Jackson VA Medical Center, or any other VA medical facility that may have treated the Veteran, and associate those documents with the claims file. 2. Ask the Veteran to identify any private treatment that he may have had for his lumbar spine, left foot, and bilateral ankle disorders, which is not already of record. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 3. Schedule the Veteran for a VA examination to determine the current severity of his lumbar spine disability. The claims folder must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. Full range of motion testing must be performed where possible. The lumbar spine should be tested in both active and passive motion, in weightbearing and non-weightbearing and, if possible, with range of the opposite undamaged joint. 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. In addition to completing the above testing, the examiner should additionally address any neurological complications associated with his lumbar spine disability, to include any radiculopathy, or bowel or bladder dysfunction that may be related to the Veteran's lumbar spine disability. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. 4. Schedule the Veteran for a VA examination in order to determine the current severity of his pes planus and plantar fasciitis of the left foot. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted and the results reported in detail. Following review of the claims file, the VA examiner must conduct a pes planus DBQ examination of the Veteran; the examiner should identify all symptomatology associated with the Veteran's pes planus and plantar fasciitis of the left foot. 5. Schedule the Veteran for a VA examination to determine whether any bilateral ankle disorders are the result of his military service or the service-connected disabilities. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted and the results reported in detail. After examination of the Veteran and review of the claims file, the examiner should identify bilateral ankle disorders found, to include any residuals of a sprain. Then, the examiner should opine whether the Veteran's bilateral ankle disorder at least as likely as not (50 percent or greater probability) began in or is otherwise related to the Veteran's military service, to include his multiple sprains during service in the Republic of Iraq. The examiner is to take as conclusive fact that the Veteran sprained his ankles several times during his deployment to the Republic of Iraq although his service treatment records may not indicate any treatment for such. Also, the examiner should note that know disability of the Veteran's ankles was noted upon entry to military service. The examiner should also address of the Veteran's lay statements regarding onset of symptomatology and any continuity of symptomatology since onset and/or since discharge from service. The examiner should also specifically address the previous VA examination reports of record and those examiners' findings and conclusions, as well as any other pertinent evidence of record, as appropriate. Next, the examiner should opine whether the Veteran's bilateral ankle disorders at least as likely are (a) caused by; or (b) aggravated (i.e., permanently worsened beyond the normal progression of that disease) by the Veteran's service-connected disabilities, particularly his lumbar spine and bilateral feet disabilities. If aggravation of the Veteran's bilateral ankle disorders by any service-connected disability is found, the examiner must attempt to establish a baseline level of severity of his bilateral ankle disorders prior to aggravation by the service-connected disability. All opinions must be accompanied by an explanation. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 6. Following any additional indicated development, the AOJ should review the claims file and readjudicate the Veteran's claim of service connection for a bilateral ankle disorder, and increased evaluation claims for his lumbar spine and left foot disabilities. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is 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). 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 2014). ______________________________________________ M. HYLAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs