Citation Nr: 1308802 Decision Date: 03/15/13 Archive Date: 03/25/13 DOCKET NO. 10-26 803 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a low back disability, to include as secondary to service-connected bilateral pes planus and bilateral hallux valgus with hammertoe. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran had a period of active duty for training (ACDUTRA) with the Marine Corps Reserve from August to November 1985. This matter comes before the Board of Veterans' Appeals (Board) from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In that decision, the RO denied entitlement to service connection for a lumbar spine disability. The Veteran testified before the undersigned at an October 2012 hearing at the RO (Travel Board hearing). A transcript of that hearing has been associated with his claims folder. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. The documents in this file have been reviewed and are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. In his November 2009 notice of disagreement, the Veteran raised the matter of entitlement to service connection for a right knee disability, to include as secondary to service-connected foot disability. This matter has not been adjudicated by the Agency of Original Jurisdiction (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 Once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, he must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran was afforded a VA examination in September 2009 to assess the nature and etiology of his claimed low back disability. The nurse practitioner who conducted the examination opined that the Veteran's current low back disability, diagnosed as degenerative disc disease of the lumbar spine, was not likely ("less likely as not"/"less than 50/50 probability") primarily caused by his flat feet. She reasoned that there was objective evidence of degenerative disc disease of the spine and that the Veteran had worked for years as a letter carrier with the Postal Service. He walked at work and carried letters in a satchel bag slung across his back. In other words, he was on his feet for hours every day while walking and carried an additional load in the form of his postal satchel full of mail. A population based, prospective study in England found that jobs involving lifting, pulling, or pushing objects of at least 25 pounds and jobs involving prolonged periods of standing or walking were associated with a higher incidence of low back pain. The examiner further explained that the Veteran was service-connected for flat feet and that a review of medical literature revealed many resources that discussed the effects of foot biomechanics on low back pain. However, there was no evidence in such literature to suggest that flat feet caused degenerative disc disease of the spine. The primary cause of the Veteran's back pain (accounting for more than 50 percent) was his degenerative disc disease of the spine. Thus, while the examiner believed that his flat feet did contribute to his back pain, it was not the primary cause of such pain. The September 2009 opinion is inadequate because the examiner alluded to a conclusion that the Veteran's employment as a letter carrier with the Postal Service was a significant contributor to his current back disability. However, during the October 2012 hearing the Veteran reported that he had begun to experience problems with his back in the late 1980s prior to being employed as a letter carrier and that he had first received treatment for his back at that time. In this regard, a medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). Additionally, the September 2009 opinion only addressed whether the Veteran's current low back disability was caused by his service-connected pes planus. However, service connection may also be granted for a disability that is "aggravated" by a service-connected disability and no opinion was provided as to any possible aggravation. 38 C.F.R. § 3.310 (2012). VA regulations provide that where an examination 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); see 38 C.F.R. § 19.9 (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). Moreover, the Veterans Claims Assistance Act of 2000 (VCAA) requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c), (d) (2012). The VCAA's duty to assist includes a duty to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. 38 C.F.R. § 3.159(c)(4). During the October 2012 hearing, the Veteran reported that he had received treatment for his foot disabilities from Charlottesville Orthopedic and Sports Medicine. Although the Veteran has submitted some treatment records from this facility, such records only pertain to treatment for knee problems. Also, relevant treatment records from Dr. Lander at the Charlottesville Pain Management Center have been obtained and associated with the claims file. However, the Veteran has alluded to the fact that he has received additional treatment for his back problems from medical professionals other than Dr. Lander. For example, in a November 2009 letter he stated that he had been to "many" physicians concerning his back since the 1990s. He further stated that he would attempt to retrieve treatment records from such physicians if it was necessary. When VA becomes aware of private treatment records it will specifically notify the Veteran of the records and provide a release to obtain such records. If the Veteran does not provide the release, VA must ask the Veteran to obtain the records. 38 C.F.R. § 3.159(e)(2). These steps have not yet been taken with regard to any relevant treatment records from Charlottesville Orthopedic and Sports Medicine or from any other private treatment providers other than Dr. Lander. Thus, a remand is also necessary to attempt to obtain any additional relevant private treatment records. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify the location and name of any private medical facility where he has received post-service treatment for low back and bilateral foot disabilities. He shall also be asked to include the dates of any such treatment. The Veteran shall also be asked to complete authorizations for VA to obtain all records of his treatment for low back and bilateral foot disability from Charlottesville Orthopedic and Sports Medicine and from any other sufficiently identified private treatment provider from whom records have not already been obtained. All efforts to obtain these records must be documented in the claims file. If the Veteran fails to furnish any necessary releases for private treatment records, he shall be advised to obtain the records and submit them to VA. If any records are unavailable, the Veteran shall be notified of the identity of the putative records that are unavailable, the efforts VA has undertaken to obtain such records, and any additional action that may be taken concerning his claim. 2. Thereafter, schedule the Veteran for a VA examination to determine the etiology of his current low back disability. All indicated tests and studies shall be conducted. The claims folder, including this remand and any relevant records contained in the Virtual VA system along with any records obtained pursuant to this remand, must be sent to the examiner for review; consideration of such shall be reflected in the completed examination report or in an addendum. For each current low back disability identified (i.e. any low back disability diagnosed since November 2008), the examiner shall indicate whether it is at least as likely as not (50 percent probability or more) that the low back disability had its clinical onset during ACDUTRA or is otherwise the result of a disease or injury during that period. The examiner shall also indicate whether it is at least as likely as not (50 percent probability or more) that the current low back disability was caused by the Veteran's service-connected bilateral pes planus and/or bilateral hallux valgus with hammertoe? If not, the examiner should indicate whether it is at least as likely as not (50 percent probability or more) that the current low back disability was aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by the Veteran's service-connected bilateral pes planus and/or bilateral hallux valgus with hammertoe? If a current low back disability is found to have been aggravated by a service-connected foot disability, the examiner shall indicate the extent of such aggravation by identifying the baseline level of disability and the permanent, measurable increase in its severity attributable to the service-connected foot disability. In answering the above questions, the examiner must specifically acknowledge and discuss any low back disabilities diagnosed since November 2008, Dr. Lander's October 2008 opinion, the opinion of the examiner who conducted the September 2009 VA examination, and the Veteran's reports of treatment for back problems since the late 1980s before he was employed as a letter carrier with the Postal Service. The examiner must provide reasons for each opinion given. 3. If any benefit on appeal remains denied, the AOJ shall issue a supplemental statement of the case. Thereafter, the case shall be returned to the Board, if in order. No action is required of the Veteran until he is notified by the AOJ; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2012). The Veteran 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 Supp. 2012). _________________________________________________ THOMAS J. DANNAHER 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).