Citation Nr: 1809037 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 08-04 835 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to service connection for bilateral Achilles tendonitis. 2. Entitlement to an initial compensable evaluation for thoracolumbar spine strain. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C. Garcia, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from December 1997 to April 1998 and from November 2004 to January 2006. Additionally, the Veteran was called to active duty during the pendency of this appeal from June 2008 to June 2010, from June 2011 to June 2014, and from April 2014 to April 2016. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland and a January 2008 rating decision of the VA RO in Philadelphia, Pennsylvania. In January 2018, the Veteran testified at a Board hearing conducted by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's VA claims file. The issue of entitlement to an initial compensable evaluation for thoracolumbar spine strain is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's chronic bilateral Achilles tendonitis is related to her active military service. CONCLUSION OF LAW The criteria for service connection for bilateral Achilles tendonitis have been met. 38 U.S.C. §§ 1110, 1131, 1154(a), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In light of the fact that the Board is granting the claim being considered on the merits, no further discussion of these duties is necessary. II. Service Connection The Veteran contends that her bilateral Achilles tendonitis started in basic training and has continued ever since. In general, service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. See 38 C.F.R. § 3.303(d). Here, private treatment records for the period of June to December 2002 that were considered for purposes of the Veteran's retention in the Army Reserves note the Veteran's long-term problem with bilateral Achilles tendonitis. In one of his assessments dated in December 2002, a doctor of podiatric medicine (DPM) opined that the Veteran had chronic Achilles tendonitis secondary to an overuse injury stemming back from basic training in 1998. The Veteran has also testified to continuing complaints since basic training and has multiple current diagnoses of bilateral Achilles tendonitis. Accordingly, based on all of the foregoing, the Board finds that service connection for the Veteran's chronic bilateral Achilles tendonitis is warranted. ORDER Service connection for bilateral Achilles tendonitis is granted. REMAND While the Board sincerely regrets further delay, a remand for additional development is required with respect to the Veteran's claim for entitlement to an initial compensable evaluation for thoracolumbar spine strain. The Veteran asserts that her service-connected thoracolumbar spine strain disability has become significantly worse. See, e.g., January 2018 hearing transcript, July 2014 and April 2016 medical notes in July 2016 STRs. The Veteran testified at her January 2018 hearing that since her in-service injury in December 2004 wherein she fell from a Humvee her back condition has continued to worsen including feeling constant burning throughout her back. The Board notes that the last VA examination afforded the Veteran was in June 2009. Where evidence indicates an increase in severity in service-connected disabilities, a remand is necessary for updated examinations. See VAOPGCPREC 11-95 (April 7, 1995); Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). As the Veteran's medical examination is more than five years old, a concurrent medical examination is required to adjudicate the severity of the Veteran's current disability. Since the claims file is being returned it should be updated to include any recent VA treatment records that are not of record. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Any outstanding VA treatment records dated since July 2016 should be associated with the claims file. 2. After the above development has been completed and all records have been associated with the claims file, the Veteran must be afforded a VA examination by an examiner with appropriate expertise to determine the current severity of the Veteran's thoracolumbar spine strain. Any and all studies, tests, and evaluations that are deemed necessary by the examiner should be performed. The claims folder, including a copy of this remand, should be reviewed by the examiner. The examination report should note review of these records and specifically the Veteran's June 2009 VA examination report. The examiner should then: (a) Determine the current severity of the Veteran's thoracolumbar spine strain disability. Report the range of motion in degrees. The range of motion should be tested actively and passively, in weight bearing, and after repetitive use. 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 this is so. In providing this opinion, the examiner should consider the Veteran's lay statements regarding her decreased range of motion. (b) The extent of any weakened movement, excess fatigability and incoordination should also be described by the examiner. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. (c) The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups. The examiner should further assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. The examiner should consider all procurable and assembled data by obtaining all tests and records that might reasonably illuminate the medical analysis. This includes the Veteran's statements regarding the extent of functional loss during any flare-ups. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. The examiner is advised that the Veteran is competent to report injuries and symptoms, and that her reports must be considered in formulating the requested opinions. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. 3. After conducting any additional development deemed necessary, readjudicate the claim. If the claim remains denied, issue a supplemental statement of the case to the Veteran and her representative, allow the appropriate time for response, and thereafter return the case to the Board, if in order. 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. §§ 5109B, 7112 (2012). _________________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs