Citation Nr: 1302940 Decision Date: 01/28/13 Archive Date: 02/05/13 DOCKET NO. 10-08 601 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for a bilateral ankle disability. 3. Entitlement to service connection for a right knee disability. 4. Entitlement to an initial rating in excess of 10 percent for bilateral pes planus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Bordewyk, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1991 to February 2002. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which, in pertinent part, denied entitlement to service connection for disabilities of the back, bilateral ankles, and right knee, and granted service connection for bilateral pes planus with plantar fasciitis, with a 10 percent disability rating assigned, effective February 15, 2008. The Cleveland, Ohio, RO now maintains jurisdiction in this case. The Veteran provided testimony during a hearing before the undersigned at the RO in May 2012. A transcript is of record. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. 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 During the Board hearing, the Veteran stated that he had received medical treatment related to his back disability with a Dr. Bell continuously since 2001. He also identified private treatment by a Dr. Jones or Jonas for his ankle and foot disabilities. The claims file does not demonstrate records of such treatment by either of the private treatment providers identified during the hearing. In addition, a March 2010 letter from Dr. Naples indicated that he had provided relevant treatment since 2008, suggesting at the very least treatment from 2008 to 2010. The only records requested or obtained from the physician are dated in 2008. VA has a duty to obtain relevant records of private treatment, including records of treatment reported by private physicians. 38 U.S.C.A. § 5103A (b) (West 2002); Massey v. Brown, 7 Vet. App. 204 (1994). VA has adopted a regulation requiring that when it becomes aware of private treatment records it will specifically notify the claimant of the records and provide a release to obtain the records. If the claimant does not provide the release, VA has undertaken to request that the claimant obtain the records. 38 C.F.R. § 3.159(e)(2) (2012). Therefore, the identified private treatment records must be obtained, or in the very least an attempt to obtain the records must be made, in accordance with 38 C.F.R. § 3.159. In addition, the Veteran reported during the hearing that he has continued to seek VA treatment for his ankles and feet. The only VA treatment record associated with the record are dated in February 2009 and February 2010. Where VA has constructive and actual knowledge of the availability of pertinent reports in the possession of the VA, an attempt to obtain those reports must be made. See Bell v. Derwinski, 2 Vet. App. 611 (1992). As this evidence is relevant to the Veteran's claim, all relevant records in VA's possession must be obtained. Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The types of evidence that indicate that a current disability may be associated with military service includes credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, at 83. Where "diagnosis is not supported by the findings on the examination report or if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes." 38 C.F.R. § 4.2 (2012). Where the Board makes a decision based on an examination report which does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination.'" Goss v. Brown, 9 Vet. App 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569 (1993). Regarding the ratings assigned to service-connected disabilities, a veteran must be afforded a thorough and contemporaneous examination when the record does not adequately reveal the current state of disability. Hart v. Mansfield, 21 Vet. App. 505, 508 (2007) (citing, inter alia, Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). The record is inadequate and the need for a contemporaneous examination occurs when there is evidence (including a veteran's statements) of a possible increase in disability since the last examination. Hart, 21 Vet. App. at 508 (citing, inter alia, Snuffer v. Gober, 10 Vet. App. 400, 403 (1997)). The Veteran received a VA spine examination in January 2010, where the examiner stated that it was not likely that the currently diagnosed degenerative disc disease was related to the in-service back strain, but that it was more likely a natural occurring disability. The examiner also stated that there was no evidence in the record of any permanent aggravation beyond the normal progression of the disease. Unfortunately a rationale for the opinions offered was not provided and the Veteran's statements regarding the in-service incurrence and continuity of symptoms since service were not taken into consideration. The Veteran offered further detail regarding these elements during the Board hearing, which occurred after the last VA examination of his spine. The Court has held that an examination is inadequate where the examiner formulates an opinion without considering the Veteran's statements. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Furthermore, an examination is inadequate where the examiner does not review the medical history and provide a factually accurate rationale for the opinions provided in the examination report. Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 303-4 (2008). The Board finds that a new VA examination must be provided to determine the etiology of the Veteran's current back disability. Similarly, the Veteran was provided an inadequate VA examination in May 2008. The examiner concluded that it was more likely than not that the currently diagnosed bilateral ankle sprains were not related to the signs and symptoms documented in service. Again, a rationale was not provided and the Veteran's statements regarding the in-service ankle injuries and continuity of symptoms were not considered or discussed in the opinion. Therefore, a new VA examination must be provided to determine the etiology of the Veteran's current bilateral ankle disabilities. Dalton; Nieves-Rodriquez. During the Board hearing, the Veteran discussed his current right knee symptoms and described the in-service onset and continuity of those symptoms. The Veteran's private physician also stated in a March 2010 letter that the Veteran has had continuous right knee symptoms following the reported in-service injury. The Board finds this evidence to be sufficient to raise VA's duty to provide an examination to determine the etiology of any current right knee disability. Regarding the increased initial rating issue, the Veteran reported during the hearing that his bilateral pes planus symptoms have worsened. He specifically identified increased pain and cramps, particularly during use of his fee, and also described a varying amount of relief provided by his insoles. His last VA foot examination took place in January 2010. A Veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Hart v. Mansfield, 21 Vet. App. 505, 508 (2007); Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). In addition, a Veteran is competent to provide an opinion that his disability has worsened. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Given his reports of worsening symptomatology and the amount of time that has passed since his last examination, the Board is requesting that a new VA examination be obtained to assess the current severity of his bilateral pes planus. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA medical records and associate them with the claims file or Virtual VA. All efforts to obtain these records must be documented in the claims file. Such efforts should continue until they are obtained, it is reasonably certain that they do not exist, or that further efforts would be futile. 2. Ask the Veteran to provide releases authorizing VA to obtain all records of private treatment with the physicians identified in the Board hearing. If the Veteran fails to complete necessary authorizations, tell him that he may obtain and submit the records himself. If any records cannot be obtained, inform the Veteran of this fact, tell him what efforts were made to obtain the records, and advise him of any additional development that will be undertaken. 3. Once the above development has been completed, provide the Veteran with a VA spine examination with a qualified physician to determine whether any current back disability is related to service. The claims folder, including this remand and any relevant records contained in the Virtual VA system, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner is requested to list all current thoracolumbar and cervical back disabilities. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any current back disability, to include degenerative disc disease, had onset in service or is otherwise related to a disease or injury in service, including in-service treatment for back strain. The examiner should provide reasons for the opinions that take into account the Veteran's reports of his history, the reported in-service injuries, exposures, or events, and his current symptoms. If the examiner discounts the Veteran's reports, he or she should provide a reason for doing so. If the examiner cannot provide an opinion without resort to speculation, the examiner must provide a reason why this is so, and must state whether there is additional evidence that would permit the opinion to be rendered. 4. Once the above development has been completed, provide the Veteran with a VA orthopedic examination with a qualified physician to determine whether any current bilateral ankle or right knee disability is related to service. The claims folder, including this remand and any relevant records contained in the Virtual VA system, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner is requested to list all current bilateral ankle and right knee disabilities. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any current bilateral ankle or right knee disability had onset in service or is otherwise related to a disease or injury in service, including the reported and documented in-service injuries and treatment. The examiner should provide reasons for the opinions that take into account the Veteran's reports of his history, the reported in-service injuries, exposures, or events, and his current symptoms. If the examiner discounts the Veteran's reports, he or she should provide a reason for doing so. If the examiner cannot provide an opinion without resort to speculation, the examiner must provide a reason why this is so, and must state whether there is additional evidence that would permit the opinion to be rendered. 5. Once all available evidence has been obtained and associated with the claims file, the Veteran should be scheduled for a VA examination to determine the current severity of his bilateral pes planus. The examiner should review the claims file and note such review in the examination report or in an addendum. The examiner should report all current findings related to bilateral pes planus and provide an opinion as to the current severity of the disability. The examiner should specifically note whether there is objective evidence of marked or pronounced deformities, pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances on one or both feet. The examiner should provide a rationale for each of the opinions that takes into account the Veteran's reports of his history and his current symptoms. If the examiner discounts the Veteran's reports, the examiner should provide a reason for doing so. The examiner should provide an opinion as to whether bilateral pes planus alone, or in combination with his right hand disability, would prevent the Veteran from obtaining or maintaining gainful employment for which his education and occupational experience would otherwise qualify him. The examiner should provide a rationale for this opinion. 6. The agency of original jurisdiction (AOJ) should review the examination reports to ensure that they contain the information, opinions, and rationales requested in this remand. 7. After completion of all requested and necessary development, the AOJ should review the record in light of the new evidence obtained. If any benefit for which there is a perfected appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case. Once they are afforded an opportunity to respond, the claim should be returned to the Board for appellate review. 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 2002 & Supp. 2012). _________________________________________________ J. A. MARKEY 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).