Citation Nr: 1301554 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 09-32 387 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for keratoma bilateral calcaneus and right great toe with bilateral calcaneal heel spurs. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and her spouse ATTORNEY FOR THE BOARD K. Conner, Counsel INTRODUCTION The appellant served on active duty from March 1996 to October 2007. This matter came to the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In that rating decision, the RO, in pertinent part, denied service connection for a low back disability, a headache disability, sinusitis, and a disability characterized as keratoma bilateral calcaneus and right great toe with bilateral calcaneal heel spurs. The appellant initiated an appeal with respect to these issues in March 2009. Thereafter, in a July 2009 rating decision, the RO granted service connection for cephalagia and assigned an initial zero percent disability rating, effective October 25, 2007. The grant of service connection for this disability constitutes a full award of the benefits sought on appeal with respect to the claim of entitlement to service connection for headaches. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). In August 2009, the appellant initiated an appeal of the initial disability rating assigned for her service-connected cephalgia. Jurisdiction of the case was transferred to the Atlanta, Georgia RO. In a March 2011 Statement of the Case, the RO increased the rating for the appellant's cephalagia to 10 percent, effective September 15, 2009. The record currently before the Board contains no indication that the appellant thereafter perfected an appeal with respect to this issue. Thus, the issue of entitlement to a higher initial rating for cephalagia is not before the Board. In July 2009, the St. Petersburg RO issued a Statement of the Case addressing the remaining issues raised by the appellant in her March 2009 notice of disagreement - entitlement to service connection for a low back disability, sinusitis, and keratoma bilateral calcaneus and right great toe with bilateral calcaneal heel spurs. The appellant perfected an appeal with respect to these issues via her submission of a VA Form 9 in August 2009. Before the matter was certified to the Board, in a March 2011 rating decision, the Atlanta RO granted service connection for sinusitis and assigned an initial 10 percent disability rating, effective October 25, 2007. The grant of service connection for sinusitis constitutes a full award of the benefits sought on appeal with respect to that issue. Grantham, 114 F. 3d at 1158. The record currently available to the Board contains no indication that the appellant initiated an appeal with the initial rating or effective date assigned. Thus, those matters are not in appellate status. Id. The remaining issues on appeal are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Low back disability The appellant claims that she developed chronic low back pain in service in 2004 and that her symptoms have persisted since that time. The appellant's service treatment records confirm that she sought treatment in service on multiple occasions for chronic low back pain with occasional radiation to the lateral left thigh. In September 2004, for example, she was assessed as having low back pain. At a physical therapy consultation in April 2005, she reported chronic low back pain since 2004. The diagnosis was lumbago. X-ray studies performed in May 2005 showed a minimal height reduction at L5-S1 disc space which the radiologist indicated may represent disc disease with a suggestion of minimal retrolisthesis of L5 over S1. The appellant's spouse has also submitted a statement attesting to the appellant's in-service complaints of low back pain. The appellant was afforded a VA medical examination in March 2008, at which she reported the onset of lumbar spine pain in 2004 with no overt injury or trauma. She claimed to be unable to sit, stand or lay for more than 30 minutes due to her symptoms. On examination, the examiner noted tenderness to palpation over the paraspinous musculature. Range of motion testing showed forward flexion limited to 80 degrees. X-ray studies of the lumbar spine were unremarkable. The diagnosis was no objective findings on clinical examination to support a diagnosis for a lumbar condition. Given the positive findings of tenderness on palpation and limited flexion, however, as well as the appellant's subjective complaints, the Board finds the examiner's diagnosis of "no objective findings" to be of limited probative value, absent further comment. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (discussing factors for determining probative value of medical opinions). A remand is therefore necessary to clarify whether the appellant currently has a low back disability which had its inception during her period of service or is otherwise causally related to her active service. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide an examination or obtain a medical opinion, it must ensure that the examination or opinion is adequate); see also 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012). Keratoma, bilateral calcaneus and right great toe, with bilateral calcaneal heel spurs The appellant contends that during her period of active service, in approximately 2004, she developed excessively thick skin on her heels and right toe resulting in pain and difficulty with physical activities such as running. She claims that her condition has persisted to the present day. The appellant's spouse has submitted a statement attesting to his observations that the appellant developed thick and painful growths on her feet in service which have persisted since that time. In connection with her claim, the appellant was afforded a VA medical examination in March 2008 at which she complained of thick, dry skin on both heels and the right great toe since 2004. On examination, the bilateral heel and medial right great toe skin was hyperkeratotic without fissures or infection. X-ray studies of the feet showed possible mild bilateral hallux valgus and mild bilateral calcaneal osteophyte formation. The diagnosis was keratoma bilateral calcaneus and right great toe with incidental finding of bilateral calcaneal heel spurs. The examination, however, did not comment on the etiology of the condition. Under these circumstances a remand is necessary to clarify the nature and etiology of the appellant's claimed disability. Barr, 21 Vet. App. at 312. Accordingly, the case is REMANDED for the following action: The Board has requested that examination(s) be conducted. This document sets out 2 separate paragraphs for the examinations. The exam(s) may be conducted as just a single exam if indicated by medical personnel, so long as the requested opinions are provided. 1. The appellant should be scheduled for a VA medical examination for the purpose of clarifying the nature and etiology of any current low back disability. The claims file must be made available to the examiner for review in connection with the examination. The examiner should be asked to provide an opinion, with supporting rationale, as to whether the appellant currently exhibits a low back disability. If so, the examiner should identify the nature of that disability and comment on whether it is at least as likely as not that the current low back disability is causally related to the appellant's active service or any incident therein, including repeated complaints of chronic low back pain. A complete rationale for the opinion expressed must be provided. 2. The appellant should be scheduled for a VA medical examination for the purpose of clarifying the nature and etiology of her keratoma, bilateral calcaneus and right great toe, with bilateral calcaneal heel spurs. The claims file must be made available to the examiner for review in connection with the examination. The examiner should be asked to provide an opinion, with supporting rationale, as to whether it is at least as likely as not that any current keratoma, bilateral calcaneus and right great toe, with bilateral calcaneal heel spurs identified on examination had its inception during the appellant's period of active duty or is otherwise causally related to her active service or any incident therein. 3. After conducting any additional development deemed necessary, the RO should readjudicate the claims, considering all the evidence of record. If any benefit sought remains denied, the appellant and her representative should be provided a supplemental statement of the case and an appropriate period of time for response. The case should then be returned to the Board, 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. 2012). _________________________________________________ MICHAEL D. LYON 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) (2012).