Citation Nr: 1237210 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 07-16 599 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a disorder manifested by neck pain. 2. Entitlement to service connection for a disorder manifested by heel pain. 3. Entitlement to service connection for a disorder manifested by abdominal pain. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD N. L. Northcutt, Counsel INTRODUCTION The Veteran served on active duty from June 1973 to October 1979. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Anchorage, Alaska. Jurisdiction has since been transferred to the RO in Houston, Texas. The Veteran testified at a hearing before the undersigned Veterans Law Judge in May 2010. A transcript of those proceedings has been associated with the Veteran's claims file. The Board denied the Veteran's claims in a decision issued in August 2010, and the Veteran subsequently appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2012 Memorandum Decision, the Court vacated the Board's decision with regard to the claims captioned above, finding deficiencies in the Board's analysis as outlined below. (The Board's decision to deny four other service connection claims has not been disturbed.) The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND As referenced above, the Court vacated the portion of the Board's 2010 decision denying the Veteran's service connection claims for disorders manifested by neck, heel, and abdominal pain. With regard to the Veteran's service connection claim for disorders manifested by neck and heel pain, the Court found that the Board failed to discuss the Veteran's contention that the wear and tear he incurred to his heels and neck from carrying his heavy rucksack during service caused his current neck and heel disorders. The Court further found that the Board erred by failing to discuss whether the Veteran's report of experiencing continual abdominal and neck pain since service is sufficient to establish entitlement to service connection for these disorders. Notably, the Court specifically found that the 2007 VA medical opinion exploring the relationship between the Veteran's diagnosed heel and neck disorders is sufficient for adjudicatory purposes. With regard to the Veteran's service connection claim for a disorder manifested by abdominal pain, the Court concluded that the Board failed to adequately explain why the low threshold triggering VA's duty to provide the Veteran with a VA examination had not been met. Specifically, the Court again found error with the Board's failure to discuss the Veteran's reported continual abdominal pain since service when determining that a VA examination was not necessary. For the reasons set forth below, the Board finds that upon further review of the evidence, including evidence associated with the record since the 2007 VA medical opinion was rendered, the Veteran should be afforded a VA examination with regard to his claimed abdominal pain and a new VA medical opinion with regard to his claimed neck and heel disorders. With regard to the Veteran's service connection claim for a disorder manifested by abdominal pain, the Veteran's statements of record reflect his assertion that his abdominal pain is caused by a hernia. Specifically, a May 2007 statement reflects the Veteran's report that he has been diagnosed with an umbilical hernia, and a May 2004 private treatment record does indeed reflect this diagnosis. Additionally, a March 1975 service treatment record reflects the Veteran's treatment for an infected naval that was oozing clear fluid. Additionally, the Veteran has reported experiencing recurrent abdominal pain since his in-service parachuting accident, which his service treatment records reflect occurred in June 1975, a few months after his treatment for an infected naval. Given the Veteran's in-service naval treatment, post-service diagnosis of an umbilical hernia, and reports of experiencing continuous related abdominal discomfort since service, the Board finds that VA's duty to provide a related VA examination and medical opinion has been triggered. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (holding that a VA examination is warranted when the medical evidence suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits). Specifically, the examination should ascertain the current nature of any diagnosed illness resulting in the Veteran's reported abdominal pain and its potential relationship to service. The proffered opinion should also consider the Veteran's reports of related continuity of symptomatology since service. With regard to the Veteran's claimed neck and heel disorders, currently diagnosed as cervical degenerative disc disease and plantar fasciitis, an addendum VA medical opinion should be obtained. As reflected in the Court's Memorandum decision, the Board must consider the Veteran's theory that these orthopedic disorders resulted from wear and tear incurred during service when carrying his heavy rucksack. Additionally, in a recently submitted statement, the Veteran has also asserted that his in-service duties requiring prolonged running and walking, heavy lifting, and numerous parachute jump landings contributed to his orthopedic problems. However, as the 2007 medical opinion does not address these theories of entitlement (as the Veteran did not relate these theories to the examiner during the examination), an addendum medical opinion addressing this contention must be obtained. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board is prohibited from exercising its own independent judgment to resolve medical questions). Moreover, the 2007 medical opinion does not reflect an entirely accurate treatment history of the Veteran's claimed neck disorder, as the examiner stated that the record contains no related treatment prior to 2002. This finding was relevant to the examiner's formation of her medical opinion, as she found that the chronological facts of the Veteran's disorders failed to relate his claimed disorders to service. However, the Veteran's private treatment is of record since 1989, at which time he sought treatment for neck pain and underwent a related cervical magnetic resonance imaging (MRI) study (which found no significant protrusion). Furthermore, the Veteran has reported on numerous occasions that he has diligently tried to obtain his private treatment records for neck pain from 1980-1989, but was advised that those records have been destroyed. Accordingly, an opinion predicated an accurate review of the record must be obtained. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Additionally, the Veteran's recent VA treatment records, which were last associated with the claims file in January 2010, should be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's VA treatment records from January 2010 to the present. 2. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any currently-diagnosed disorder manifested by abdominal pain, to include an umbilical hernia. The examiner should review the Veteran's claims file in conjunction with the examination, to specifically include consideration of the Veteran's in-service treatment for an infected naval in March 1975; injuries incurred during his parachuting accident in June 1975; reports of experiencing recurrent abdominal pain since service; and a 2004 diagnosis of an umbilical hernia. After conducting a relevant physical examination of the Veteran, the examiner should then opine whether it is at least as likely as not that any currently-diagnosed disorder manifested by abdominal pain (to include an umbilical hernia) had its onset in or is otherwise related to service. The examiner should provide a detailed rationale for any opinion expressed. If the examiner determines that a medical opinion cannot be reached without resorting to speculation, a related explanation as to why that is so must be included. The examiner should also cite the missing facts or evidence necessary to render a non-speculative opinion. 3. Return the Veteran's claims folder to the examiner who conducted the February 2007 VA joints examination (or if the examiner is no longer available, a suitable replacement) to request that she prepare an addendum to her report. The Veteran need not be re-examined unless an examination is deemed necessary. If a physical examination is deemed necessary, all indicated testing should be accomplished. The examiner should review the Veteran's claims file, including: the Veteran's in-service treatment for a parachuting accident; his reports incurring wear and tear on his joints from his in-service duties (including carrying a heavy rucksack and engaging in prolonged running and walking, heavy lifting, and numerous parachute jump landings); his reports of experiencing neck and heel pain since service; his reports of seeking treatment for neck pain from 1980-1989 (the records of which have been destroyed); his treatment for neck pain of record from 1989 to the present; and his first treatment of record for heel pain, diagnosed as plantar fasciitis, in September 2002. After considering this relevant evidence, including the Veteran's report of continuity of heel and neck pain since service, the examiner should then opine whether it is at least as likely as not that the Veteran's cervical degenerative disc disease or plantar fasciitis had their onset in or are otherwise related to service. The examiner should provide a detailed rationale for any opinion expressed. If the examiner determines that a medical opinion cannot be reached without resorting to speculation, a related explanation as to why that is so must be included. The examiner should also cite the missing facts or evidence necessary to render a non-speculative opinion. 4. Then, readjudicate the appeal. If any claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC) that addresses actions taken since the issuance of the last SSOC and given the opportunity to respond. The case should then be returned 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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) (2012).