Citation Nr: 1111460 Decision Date: 03/22/11 Archive Date: 04/05/11 DOCKET NO. 99-08 463 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for bilateral metatarsalgia, to include as secondary to service-connected herniated disc, L5-S1 with lumbosacral strain or bilateral patellofemoral syndrome. 2. Entitlement to a disability rating in excess of 40 percent for herniated disc, L5-S1 with lumbosacral strain. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. B. Yantz, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1980 to January 1988. These matters come before the Board of Veterans' Appeals (Board) on appeal from October 1998 and March 2002 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The record reflects that the Veteran was scheduled to present testimony before a traveling Veterans Law Judge in September 2006 and in January 2009. However, in January 2009, the Veteran withdrew her request for a Travel Board hearing. See 38 C.F.R. § 20.704 (2010). In March 2009, the Board remanded this case for further evidentiary development. The case has now been returned to the Board for further appellate action. For the reasons explained below, the appeal is REMANDED to the RO via the Appeals Management Center (AMC). VA will notify the Veteran if further action is required on his part. REMAND While further delay is regrettable, the Board observes that additional development is once again required prior to adjudicating the Veteran's claim of entitlement to a disability rating in excess of 40 percent for herniated disc, L5-S1 with lumbosacral strain. The Board notes that the Veteran's most recent VA spine examination took place in June 2007, nearly four years ago. In the February 2011 appellant's brief, the Veteran's representative asserted the Veteran's contention that her back condition has worsened and continues to deteriorate, and also alleged that the June 2007 VA examination does not accurately portray the current severe disability picture. As the current severity and extent of the Veteran's service-connected lumbar spine disability is unclear, the Board finds that a new VA examination is necessary in order to fully and fairly evaluate her increased rating claim for that disability. In addition, the evidence of record reflects that the Veteran has been receiving private orthopedic care, to include treatment for low back pain. In an April 2010 VA treatment record, it was noted that she had recently had a private MRI of her spine. On remand, the RO/AMC should attempt to obtain all available records of such private treatment after obtaining an authorization from the Veteran. All relevant ongoing VA treatment records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Regarding her bilateral metatarsalgia claim, the Veteran contends that such disability is related either to her active service or to her service-connected herniated disc, L5-S1 with lumbosacral strain or bilateral patellofemoral syndrome. The Veteran's service treatment records document treatment in service for pain and swelling in the big toe of her right foot in February 1986, pain and tendonitis in her right heel in August 1987, tendonitis in her right foot in October 1987, and pain in her right heel in December 1987. Following her discharge from service, private and VA treatment records dating since June 1992 have documented her ongoing complaints of bilateral foot pain, to include pain radiating to her feet from her low back and knees. The Veteran underwent a VA foot examination in July 1998, during which she was diagnosed with bilateral metatarsalgia, noted to be "probably unrelated to her back or knee problems." In February 2000, the July 1998 examiner clarified her opinion and stated that the Veteran's bilateral foot condition was "more likely than not unrelated to service-connected diagnosis." The Veteran underwent another VA foot examination in August 2001, where it was noted that she sustained bilateral foot injuries in 1981 (though service treatment records are negative for such a finding). Accompanying July 2001 X-rays of the Veteran's feet showed unremarkable findings. The Veteran was scheduled to undergo another VA foot examination in July 2003, but she failed to report. Thereafter, numerous private doctors submitted statements describing symptoms of the Veteran's bilateral foot disability, but none offered an opinion as to whether her current bilateral foot condition was incurred in service or whether her service-connected low back or bilateral knee disabilities have caused or aggravated her bilateral foot condition. Pursuant to the Board's March 2009 remand, the Veteran underwent another VA foot examination in June 2009. On that occasion, the examiner indicated his review of the claims file and conducted a thorough examination of the Veteran's feet. The examiner noted that the Veteran's great toe joint pain was associated with the diagnoses of hallux limitus and osteoarthritis, and that her heel pain and numbness were associated with the diagnoses of plantar fasciitis and radiculopathy. The examiner opined that the Veteran's bilateral heel pain and foot stiffness are at least as likely as not (50/50 probability) caused by or a result of her low back disability/radiculopathy. He noted that low back pain and radiculopathy are associated with pain along the affected dermatomes which would include the heels in the Veteran's case. He further noted that the Veteran has innate biomechanical issues which have led to the development of her osteoarthritic condition of the right great toe, and that the biomechanics of her foot may have also contributed to her heel pain. In a September 2010 addendum, the June 2009 examiner again reviewed the claims file and opined that the Veteran's bilateral heel pain and foot stiffness are at least as likely as not (50/50 probability) aggravated by or caused by or a result of her low back disability/radiculopathy. The examiner explained that the Veteran's bilateral foot pains, including hallux limitus/HAV/osteoarthritis and plantar fasciitis/heel pain syndrome are all recognized biomechanical problems which are caused by the inherent mechanics of the foot type of the Veteran, and therefore the radiculopathy cannot be the root cause of these conditions. However, the examiner went on to state that, as indicated in the above opinion, the radiculopathy may be a contributing factor to the severity of the pain experienced in the Veteran's feet. The examiner noted that, due to lack of documentation prior to the Veteran's discharge from service and prior to the onset of the low back issues, there is insufficient information to conclude with certainty without mere speculation whether or not the severity of the Veteran's foot pains have been directly aggravated by the low back issue. The examiner further noted that the only indicator of increasing pain is the increased dependency on pain medications noted throughout the recent charted history, which may or may not be related to drug dependence as opposed to actual increased pain or the relatively recent diagnosis of fibromyalgia. The Board notes that the examiner did not provide an opinion regarding whether her current foot disorder arose during service. Moreover, while the examiner at one point linked the disorder to radiculopathy from her lumbar spine condition, the Board notes the most recent VA examination for her back in 2007 revealed normal sensory and motor evaluation and no atrophy. X-ray at that time revealed only mild levoscoliosis of the lumbosacral spine. Finally, the VA examiner's opinion is confusing, conflicting, and in part, speculative. Accordingly, remand for a new examination is necessary. Accordingly, the case is REMANDED for the following actions: 1. Ask the Veteran to provide the names, addresses, and approximate dates of treatment of all health care providers, both VA and private, who have treated her for her service-connected lumbar spine disability and foot disabilities since August 1999, to include recent MRI reports. After securing any necessary releases, the RO/AMC should request any records identified which are not duplicates of those contained in the claims file. If any requested records are unavailable, then the file should be annotated as such and the Veteran should be so notified. In addition, obtain all relevant ongoing VA treatment records dating since June 2010 from the East Orange, New Jersey VA healthcare system. 2. Schedule the Veteran for VA orthopedic and neurological examinations by a physician to determine the current severity of her service-connected herniated disc, L5-S1 with lumbosacral strain and to obtain an opinion as to whether the Veteran's bilateral foot disability is related to service or service connected disability. The claims file must be provided to and be reviewed by the examiner in conjunction with the examination. A complete rationale should be provided for all opinions expressed. (a) With respect to the herniated disc, L5-S1 with lumbosacral strain, the examiner should describe all symptomatology related to the Veteran's service-connected lumbar spine disability, to include orthopedic and neurological symptoms. All indicated tests should be performed and all findings should be reported in detail, including range of motion of the thoracolumbar spine (specifying at what degree in motion pain begins) and motor and sensory evaluation. The examiner should indicate whether there is objective evidence to support a finding of radiculopathy. The examiner should also describe any functional loss pertaining to the service-connected lumbar spine disability due to pain or weakness, and to document all objective evidence of those symptoms. In addition, the examiner should provide an opinion on the degree of any functional loss that is likely to result from a flare-up of symptoms or on extended use. The examiner should also document, to the extent possible, the frequency and duration of incapacitating episodes (acute signs and symptoms of intervertebral disc syndrome that have required bed rest prescribed by a physician and treatment by a physician). (b) With respect to her bilateral metatarsalgia claim, following review of the claims file and examination of the Veteran, the examiner should indicate whether any of the Veteran's current foot disabilities arose during service or are otherwise related to service, to include the complaints swelling in the big toe of her right foot in February 1986, pain and tendonitis in her right heel in August 1987, tendonitis in her right foot in October 1987, and pain in her right heel in December 1987. If not, the examiner should provide an opinion as to whether her current foot disability is caused by or permanently worsened beyond normal progression (aggravated) by the Veteran's service connected lumbar spine or bilateral knee disabilities. If aggravation is shown, the examiner should attempt to quantify the degree by which the Veteran's service connected disability aggravates the foot disability. 3. After the development requested above as well as any additional development deemed necessary has been completed, the record should again be reviewed. If the benefits sought on appeal remain denied, then the Veteran and her representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. The Veteran has the right to submit additional evidence and argument on the matter that 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. 2010). ______________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals