Citation Nr: 0810328 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 05-29 444 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for low back pain. 2. Entitlement to service connection for bilateral pes planus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. Seales, Associate Counsel INTRODUCTION The veteran served on active duty from May 2000 to November 2003. This appeal arises from an August 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Saint Petersburg, Florida, which, in pertinent part, denied entitlement to service connection for low back pain and bilateral pes planus. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The veteran seeks service connection for a chronic disability characterized by low back pain. Her service medical records reveal treatment for a four-month history of recurrent low back pain with spasms in September 2000. At the time of treatment she reported falling from a wall during basic training. In March 2001, the veteran sought treatment for low back pain which occurred while performing sit-ups during physical training. Her examining physician's impression was mechanical low back pain/back strain. In February 2003, the veteran complained of low back pain with occasional pain down her left leg to the mid-calf. Her physician noted evidence of tenderness to palpation and signs of guarding when the injured area was palpated. The veteran noted a history of low back pain at the time of her separation examination in September 2003, but no diagnosis was assigned for that complaint. The veteran underwent a VA general medical examination in July 2004, at which time the examiner noted degenerative joint disease in the low back. However, the examiner who conducted July 2004 VA joints examination concluded that the veteran did not have a disorder of the lower back. No radiologic examination more recent than 2001 (in service) is associated with the claims file. The claim should be remanded to further develop the clinical evidence as to whether the veteran has a disorder of the lower back and to reconcile the differing medical opinions. In addition, the veteran seeks service connection for bilateral pes planus, which she contends was aggravated by the physical rigors of military service. Mild asymptomatic pes planus was noted at enlistment into service in February 2000. In June 2000, the veteran sought medical treatment for bilateral foot pain. Her treating physician suspected that her symptoms were secondary to inadequate arch support and ill-fitting boots. The veteran was treated for nodular plantar fasciitis in service. In October 2003, left foot plantar fasciitis and severe, symptomatic pes planus were noted during the veteran's separation examination. During a July 2004 VA joints examination, the examiner noted significant pes planus, which likely preexisted military service. The examiner concluded that the veteran was not significantly functionally limited by her feet. The VA examiner did not render an opinion regarding whether the veteran's bilateral pes planus underwent an increase in severity beyond the natural progression of the disease during service. It does not appear that service medical records were reviewed. Thus, the claim must be remanded to obtain an opinion as to whether the veteran's currently diagnosed bilateral pes planus was incurred in or aggravated by active service, including after review of the service medical records. Accordingly, the case is REMANDED for the following action: 1. Even though the veteran has previously been sent notice of the provisions of the VCAA, it is the Board's opinion that the veteran should again be provided with notice of VA's duties to assist and notify him, set forth in the Veterans Claims Assistance Act of 2000, codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2007). In particular, the notice should include an explanation as to the information or evidence needed to establish service connection on the basis of aggravation in service. The notice described in this paragraph should be issued prior to issuance of a supplemental statement of the case (SSOC). 2. The veteran should be afforded a VA examination to determine the nature, severity, and etiology of any disability affecting the lumbar spine. Any necessary diagnostic examination should be conducted. All diagnoses are to be noted. The examiner should provide the rationale or basis for assignment of each diagnosis assigned. For each diagnosis assigned, the examiner should provide an opinion as to whether it is at least as likely as not (that is, probability of 50 percent or better) that the low back disorder is related to service. The claims folder should be made available to the examiner for review in conjunction with the examination, and the examiner should acknowledge such review in the examination report. 3. The veteran should be afforded a VA examination to determine whether it is at least as likely as not (that is, probability of 50 percent or better) that her bilateral pes planus was aggravated by active service. The claims folder should be made available to the examiner for review in conjunction with the examination, and the examiner should acknowledge such review in the examination report. The examiner should be asked to provide an opinion as to the following: (i) Is it at least as likely as not (that is, probability of 50 percent or better) that the veteran had bilateral pes planus prior to service? (ii) If the veteran's bilateral pes planus pre-existed her service, is it at least as likely as not (that is, probability of 50 percent or better) that the pes planus increased in severity beyond the natural progression expected for pes planus in service? (iii) If the veteran's bilateral pes planus pre-existed her service, is it at least as likely as not (that is, probability of 50 percent or better) that the underlying pathology of pes planus, as opposed to a temporary increase in symptomatic manifestations, increased in severity during the veteran's service? 4. After undertaking any additional development deemed appropriate in addition to that requested above, the RO should re-adjudicate the issues on appeal. If any benefit sought on appeal remains denied, the veteran and her representative should be provided a supplemental statement of the case and given an opportunity to respond. The appeal should thereafter be returned to the Board for further review, if in order. The appellant has the right to submit additional evidence and argument on the matter or 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 Supp. 2007). _________________________________________________ Tresa M. Schlecht Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals 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) (2007).