Citation Nr: 1804222 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 11-31 389 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a rating in excess of 10 percent for reflex sympathetic dystrophy of the left foot, with hammertoes. 2. Entitlement to a compensable rating prior to November 4, 2013, and to a rating in excess of 10 percent beginning November 4, 2013, for a low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Yaffe, Associate Counsel INTRODUCTION The Veteran served on active duty from January 2006 to April 2008. These matters are before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that increased the Veteran's left foot disability rating to 10 percent and continued a noncompensable rating for the low back disability. Later, a November 2013 rating decision increased the Veteran's low back disability rating to 10 percent, effective November 4, 2013. In August 2013, the Board remanded the case to schedule the Veteran for a videoconference hearing per her request. The RO attempted to contact the Veteran and scheduled her for a hearing, but she failed to appear. In March 2017, the Board determined that the hearing notification letter was returned as undeliverable and directed the RO to make additional attempts to schedule the Veteran for hearing. A hearing was scheduled for September 2017 and the Veteran was notified of the date and time of the hearing; however, she failed to appear without showing a good cause. Therefore, the Veteran's hearing request is considered to have been withdrawn. See 38 C.F.R. § 20.704(d) (2017). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board finds that a remand is necessary in order to schedule the Veteran for new VA examinations in connection with her claims on appeal as well as to obtain outstanding VA medical evidence identified in the record. With regards to the Veteran's left foot disability, the Board finds that before further development is undertaken the AOJ must clarify the nature of the service-connected disability. Specifically, the medical records on file are replete with conflicting diagnoses and information. For example, the October 2008 examiner noted no diagnosis of hammertoes, hallux valgus, or clawfoot, but then stated that X-rays showed evidence of mild hammertoe deformity of the second through fifth digits. Furthermore, the February 2010 examiner stated that there was no evidence of hammertoes, hallux valgus, or clawfoot, but the November 2013 examiner noted that there was evidence of clawfoot that pre-existed service, and there was evidence of hallux valgus. The Board finds that in light of these conflicting diagnoses comprehensive neurological and orthopedic examinations are necessary in order to properly rate the Veteran's disability. With regards to the Veteran's claim for an increased rating for her low back disability, there is conflicting medical information as to whether the Veteran has arthritis in her back. Notably, the VA examiner who conducted the October 2008 examination stated that X-rays revealed "degenerative sclerosis about the left facet at the lumbosacral junction," and the impression was lumbar facet arthropathy (degenerative arthritis of the lumbar spine). In addition, VA treatment notes dated in January 2011 indicate that the Veteran was seen in the emergency room, and had a diagnosis of sacroiliitis, which is defined as inflammation (arthritis) in the sacroiliac joint. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1650 (30th ed. 2003). Nevertheless, to the contrary, the November 2013 examiner indicated that June 2011 X-rays did not show that the Veteran had arthritis. Furthermore, the November 2013 examination is inadequate for rating purposes, as it is internally inconsistent and speculative. The November 2013 VA examiner indicated that there was no functional impairment, but then noted that during "acute pain, flare, and or repetitive use, said low back pain would significantly limit SM's M/S functionality, and or cause weakness, fatigability, or inhibit coordination." The examiner also added that it was not possible to express in degrees what the additional loss of functionality would be during pain or flare without resorting to speculation, but did not provide an adequate rationale to this conclusion. Lastly, in her February 2011 Notice of Disagreement, the Veteran indicated that she had just received treatment at VA and she submitted the discharge instructions she received showing the diagnosis of sacroiliitis, but the actual VA records from that emergency room visit are not associated with the claims file. Furthermore, the November 2013 VA examiner referenced X-rays dated in June 2011, which indicates the Veteran received subsequent treatment with VA; however, these records are not associated with the claims file. As VA records are constructively of record, any outstanding records must be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following actions: 1. Ensure that all outstanding VA treatment records are associated with the claims file, to include, complete treatment notes from the Veteran's emergency room visit in January 2011 and results from X-rays completed in June 2011. 2. Thereafter, provide the Veteran with a VA examination to determine any orthopedic and or neurological disabilities of her left foot. The claims file, and a copy of this remand, shall be made available to the examiner for review in conjunction with the examination. After a complete review of the claims file and physical examination of the Veteran, the examiner should: (a) Specifically identify all currently diagnosed orthopedic disabilities of the left foot and assess the severity of these diagnoses. For any diagnosis provided other than hammertoes, the examiner should opine as to whether the diagnosis is at least as likely as not caused or aggravated (i.e., any increase in severity beyond the natural progress of the condition) by the service-connected reflex sympathetic dystrophy of the left foot, with hammertoes. The examiner's attention is called to the following: (i) October 2008 X-rays showing mild hammertoe deformity of the second through fifth digits; (ii) Diagnosis of claw foot by the November 2013 VA examiner, and; (iii) Diagnosis of hallux valgus by the November 2013 VA examiner. If any of the previously diagnosed left foot disabilities are NOT currently shown, the examiner MUST address the prior diagnoses, noting how they have resolved, and explain any conflicting diagnoses. (b) Assess the severity and any functional impairment resulting from the Veteran's left foot neurological disability. The examiner should provide a complete rationale for the opinion, whether favorable or unfavorable, and cite to specific evidence of record, as necessary. If the examiner is unable to provide any opinion without resort to speculation, then the examiner should explain the reasons why an opinion cannot be given without resort to speculation. 3. Provide the Veteran with a VA examination to assess the current severity of her low back disability. The examiner is asked to: (i) Conduct the necessary studies and clarify whether the Veteran has lumbar spine arthritis. In doing so, please identify all currently diagnosed lumbar spine disabilities. (ii) Indicate the point during range of motion testing that motion is limited by pain and test the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing for the lumbar spine. **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. (iii) Describe in detail the presence or absence and the extent of any functional loss due to weakened movement, excess fatigability, incoordination, or pain on use, and should state whether any pain claimed by the Veteran is supported by adequate pathology, e.g., muscle spasm, and is evidenced by her visible behavior, e.g., facial expression or wincing, on pressure or manipulation. In doing so, the examiner is asked to elicit from the Veteran a detailed history of her symptoms during flares and after repeated use, including estimates of additional loss of motion, which can be used to inform such an opinion. (iv) Make an effort to portray the degree of any additional range of motion loss due to pain on use or during flare-ups. **If the examiner cannot offer an opinion without resort to speculation, he or she should explain why and state what additional evidence, if any, would be required to offer an opinion. **The fact that the examination is not done during a flare-up is not a sufficient rationale for the inability to provide an opinion on any additional loss and the examiner must explain why the Veteran's statements regarding such loss could not be used to formulate an opinion. 4. Finally, after completing all of the above, and any additional development deemed warranted, readjudicate the claims on appeal. Specifically, consider both orthopedic AND neurological manifestations with regards to the Veteran's left foot disability. If any benefit on appeal remains denied, furnish the Veteran and her representative with a copy of a supplemental statement of the case (SSOC) and allow an appropriate time for response. Thereafter, return the file to the Board for further appellate consideration. The appellant 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ M. SORISIO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).