Citation Nr: 1308756 Decision Date: 03/15/13 Archive Date: 03/25/13 DOCKET NO. 09- 12 283 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a cervical spine disorder. 2. Entitlement to service connection for a bilateral foot disorder. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael Holincheck, Counsel INTRODUCTION The Veteran served on active duty from January 1973 to January 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in September 2012. A transcript of the hearing is associated with the claims folder. The hearing record was kept open to allow the Veteran to submit additional evidence. The Veteran submitted additional evidence in October 2012. Although, the Veteran did not submit a waiver of consideration of the evidence by the agency of original jurisdiction (AOJ) in the first instance, in light of the Board's action to remand the case, the AOJ will have an opportunity to review the evidence. See 38 C.F.R. § 20.1304 (2012). The issue of whether new and material evidence to reopen a claim for entitlement to service connection for lumbar strain has been raised by the record, specifically by way of the Veteran's testimony at his hearing in September 2012 as well as by evidence he submitted in October 2012. The issue has not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. 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 The Veteran submitted his claim for service connection for cervical spine and bilateral foot disorders in February 2007. He has not identified a specific disability for either his cervical spine or his feet. The Veteran served on active duty from January 1973 to January 1976. The Veteran's military occupational specialty (MOS) was as an indirect fire infantryman. The Veteran was also parachute qualified. He testified at his hearing that he made 35 documented parachute jumps in service and probably another 20 jumps that were not documented. The Veteran testified his MOS was that of being a mortar man. The Veteran also testified that he suffered hard landings on a number of jumps and described a particular incident where he was just short of landing when a gust of wind hit him. He was flipped over on his back and head. He said he was seen at sick call after that incident and was told he had a strained back. The Veteran's service treatment records (STRs) reflect several entries regarding treatment for spine- and foot-related complaints. The entries appear to relate to strains of the lower back, such as when he was seen for complaint of a strain after lifting a mortar tube in July 1974. The Veteran was also seen on a number of occasions for complaints of pain in his feet, to include as early as February 1973. An August 1974 entry noted the Veteran's complaints of foot pain and provided an impression of symptomatic pes planus. In September 1974 he was seen for calluses on both little toes. Additional entries in 1974 reflect that consideration was being given for a medical discharge for the Veteran as a result of pes planus and plantar keratoses. In December 1975 he was seen for complaints of pain in the right shoulder. The Veteran gave a history of injuring his right shoulder in jump school in 1973. There were no specific entries regarding his cervical spine. The STRs do not include a separation physical examination. The other medical evidence of record consists mostly of VA treatment records. The VA records date back to 1976 and record evidence of lower back strains. The Veteran sought VA dental treatment in 1977. He contended that he suffered dental trauma as a result of a hard landing during a particular parachute jump. A private magnetic resonance imaging (MRI) report from June 2000 listed a number of findings in regard to the cervical spine to include very severe cervical spondylosis and degenerative changes with a number of additional findings. VA tests consisting of a cervical myelogram and computed tomography (CT) scan of the cervical spine in September 2000 also showed evidence of a number of different problems involving the cervical spine. A clinical history with the VA report indicated that the Veteran had fallen from a loading dock at work; however, the VA studies did not list findings that attributed any identified cervical spine condition as due to a recent injury. X-rays of the cervical spine from May 2006 note that the Veteran had a surgical fusion of C3-C4. However, there are no VA treatment records that document this surgery in the claims folder and the Veteran has not reported recent care at any other facility during the pendency of his claim. Moreover, there are no VA treatment records for the Veteran in Virtual VA. Thus, the records associated with the Veteran's evaluation and surgery on his cervical spine should be obtained on remand. In regard to his claimed bilateral foot disorder, the VA treatment records document a problem list that includes bilateral foot pain without a clinical entry that identifies a specific disorder. There are several x-ray reports involving the right foot. An x-ray from November 2004 was interpreted as normal, while another from July 2005 said there was evidence of mild degenerative changes in the metatarsophalangeal (MTP) joint of the great toe. However, a weight bearing x-ray of the right foot in August 2008 was interpreted to show no radiographically significant arthritic changes or any soft tissue swelling. The impression was of no acute osseous abnormalities or radiographically significant arthritic changes identified to account for the Veteran's current symptoms. The report clearly implies the Veteran was seen in a clinical setting for a complaint regarding his right foot and the x-rays ordered as a result. There is no corresponding clinical entry for August 2008 in the claims folder. The post-service VA records appear to be incomplete in that the Veteran has undergone cervical spine surgery with no record of the surgery in the current VA records. In addition, he has had VA x-rays of his right foot based on clinical assessments of complaints of pain but no concurrent clinical records with the x-rays. Finally, the Veteran submitted several statements from VA healthcare providers in support of his claim. A December 2003 statement from W.M. J., related the Veteran's complaints regarding his low back to parachute jumps in service. The Veteran submitted statements from M.F.N. as well. In January 2007, M.F.N. said the Veteran was being followed for chronic painful feet, neck and low back pain that the Veteran said began in 1975. M.F.N. said that, after reviewing the Veteran's active duty and current medical records, it was more likely than not that the Veteran's task of being a paratrooper contributed to his current problems. M.F.N. provided a second statement in October 2012. At that time, M.F.N. said that it was more likely than not that the Veteran's parachute jumps were the cause of his continued back and joint pains. The Veteran's testimony and statements of experiencing trauma to his feet and cervical spine as a result of his parachute jumps is credible and consistent with his military duties. See 38 U.S.C.A. § 1154(a) (West 2002). His STRs document multiple entries relating to his feet. He also had a number of occasions of back strain noted in service. In light of the STR entries, the post-service medical records and favorable statements provided by the VA healthcare providers, the Veteran must be afforded examinations to evaluate his claim. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should contact the Veteran and request that he identify the sources for all VA and non-VA health care providers who have treated him for his claimed disorders. After securing the necessary releases, obtain copies of pertinent records that are not already of record. The VA x-ray reports in the claims folder indicate cervical spine surgery for the Veteran as per the 2006 reports. The source of the surgery is not clear from the available records but the Veteran has indicated his treatment has been through VA. Additional x-ray reports imply treatment being provided to the Veteran for his claimed foot disorder. 2. Upon completion of the above development, the Veteran should be afforded a VA examination by a physician to address the issue involving his claim for service connection for a cervical spine disorder. The claims folder and a copy of this remand must be provided to the examiner and reviewed as part of the examination. The examiner is advised that the Veteran claims that he injured his cervical spine as a result of parachute jumps made in service. The Veteran's military records document his status as parachute qualified and as assigned to an airborne unit in service. He maintains that his current cervical spine complaints and problems are related to his parachute jumps in service. In that regard, the examiner is requested to identify any and all cervical spine disorders that may be present. The examiner is further requested to provide an opinion as to whether it is at least as likely as not that any currently diagnosed cervical spine disorder can be related to the Veteran's military service. A complete rationale must be provided for any opinion expressed. If the examiner is unable to provide the requested opinion without resorting to speculation, the examiner must provide an explanation for the basis of that determination. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). (The United States Court of Appeals for Veterans Claims stated in Jones that the phrase "without resort to speculation" should reflect the limitations of knowledge in the medical community at large and not those of a particular examiner. Jones, Id. at 390.) 4. The Veteran should be afforded a VA examination by a physician to address the issue involving his claim for service connection for a bilateral foot disorder. The claims folder and a copy of this remand must be provided to the examiner and reviewed as part of the examination. The examiner is also advised that the Veteran's STRs contain a number of entries regarding treatment for complaints related to the Veteran's feet. VA x-rays have provided contradicting findings in 2004, 2005 and 2008. The examiner is requested to identify any and all foot disorders that may be present. The examiner is further requested to provide an opinion as to whether it is at least as likely as not that any currently diagnosed foot disorder can be related to the Veteran's military service. A complete rationale must be provided for any opinion expressed. If the examiner is unable to provide the requested opinion without resorting to speculation, the examiner must provide an explanation for the basis of that determination. See Jones, supra. (The United States Court of Appeals for Veterans Claims stated in Jones that the phrase "without resort to speculation" should reflect the limitations of knowledge in the medical community at large and not those of a particular examiner. Jones, Id. at 390.) 5. The examination reports should be reviewed to ensure they are in complete compliance with the directives of this remand. If any report is deficient in any manner, it should be returned to the examiner. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After undertaking any other development deemed appropriate, the AMC/RO should re-adjudicate the issues on appeal. If any benefit sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. Thereafter, the case should be returned to the Board for further appellate review. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is notified by the AMC/RO. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded to the AMC/RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ ROBERT E. SULLIVAN 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).