Citation Nr: 1007342 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 07-05 981 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a back and neck condition as secondary to service-connected bilateral pes planus. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD R. Poulson, Associate Counsel INTRODUCTION The Veteran had active military service from February 1977 to December 1978. This matter comes to the Board of Veterans' Appeals (Board) from a January 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas which denied service connection for a back and neck condition. On appeal in August 2008, the Board remanded the case for additional development. 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 August 2008 Board Remand requested an examination addressing whether the Veteran's service-connected bilateral pes planus aggravates any current back or neck condition. The December 2008 VA examiner diagnosed (1) degenerative disc disease, lumbar spine, postoperative, mild, and (2) degenerative disc disease, cervical spine. He opined that the Veteran's back and/or neck disability "is less likely as not (less than 50/50 probability) caused by or a result of service connected pes planus." He specifically noted in his rationale that the Veteran had suffered a work-related back injury in 1995. However, the report does not address the specific question as to whether the Veteran's bilateral foot injury aggravates the Veteran's back or neck disabilities. Furthermore, the examiner did not consider Social Security Administration (SSA) records that are of record. Accordingly, remand is therefore required to ensure compliance with the August 2008 remand. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). The August 2008 Board Remand also requested that the RO ask the Veteran to submit any medical records surrounding his 1995 work-related back injury. A September 2008 letter asked for "any medical records that you have or we can obtain for you, surrounding your on-the-job injury and subsequent back symptoms in 1995." In a March 2009 correspondence, the Veteran stated that he suffered a work-related back injury in 1995 and submitted a workers' compensation claim but was unable to return to work before being laid off by his employer, McKesson Drug. It does not appear that the RO requested these records from the Veteran's former employer. Such relevant medical evidence must be secured and associated with the claims file. 38 C.F.R. § 3.159(c)(1). In addition, the Veteran requested that the RO obtain treatment reports from Baptist St. Anthony's Hospital regarding back surgery following the 1995 work-related injury. The RO received a negative response from the hospital in April 2009. However, the Veteran was not provided with notice of the RO's inability to obtain these records. Accordingly, the case is REMANDED for the following action: 1. Send a letter to the Veteran notifying him that a negative reply was received from Baptist St. Anthony's Hospital in response to the RO's requests for information. 2. Once a signed release is received from the Veteran, obtain employment records from McKesson Drug from January 1995. A copy of any negative response(s) should be included in the claims file. 3. Return the claims file to the examiner who conducted the December 2008 VA spine examination and request that he provide an opinion as to whether it is at least as likely as not that the Veteran's service- connected bilateral pes planus aggravates his back and neck disabilities and, if so, what level of disability is attributable to aggravation. If the examiner cannot be located, or if it is determined that the Veteran should undergo further examination for his back and neck disabilities, schedule the Veteran for medical examination by an appropriate medical professional to determine the nature, extent, and etiology of his back and neck disabilities. All indicated tests and studies should be performed. The claims folder and a copy of this remand must be provided to the examiner in conjunction with the examination. The examiner must provide a detailed rationale for all opinions. 4. Thereafter, any additional development deemed appropriate should be accomplished. Then, re-adjudicate the claim. If the claim remains denied, issue a supplemental statement of the case (SSOC) and allow an appropriate period of time for response. The appellant has the right to submit additional evidence and argument on the matter 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. 2009). _________________________________________________ RONALD W. SCHOLZ 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) (2009).