Citation Nr: 1310071 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 09-07 095 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty from November 1955 to April 1958. This matter initially came before the Board of Veterans' Appeals (Board) from an April 2007 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 back disability. After new and material evidence was received within the one year appeal period, the RO continued the denial of the claim in October 2008. 38 C.F.R. § 3.156(b) (2012). In April 2011, the Veteran testified at a hearing before a decision review officer (DRO) at the RO. In October 2012, the Veteran testified at a hearing before the undersigned. A transcript of each hearing is of record. In December 2012, the Board remanded the claim to the RO, via the Appeals Management Center (AMC). For the reasons stated below, the claim is again REMANDED to the RO via the AMC. VA will notify the Veteran if further action is required. REMAND The Veteran asserts that he has a current back disability related to an in-service back injury from a tank hatch and also that this disability is caused or aggravated by his service-connected pes planus. The Veteran testified that he was treated for this injury, but, unfortunately, the National Personnel Records Center (NPRC) has indicated that his service treatment records were likely destroyed by fire. In these circumstances, VA has a heightened duty to assist. Milostan v. Brown, 4 Vet. App. 250, 252 (1993). There have been two VA examinations with opinions as to the etiology of the Veteran's current back disability. The April 2012 VA examiner found that the Veteran's account of the in-service injury was more indicative of a hip than back injury, that the Veteran's diagnosis of lumbar spinal canal stenosis with bilateral lumbar radiculopathy was not established until 1991, with symptoms and diagnosis of bilateral radiculopathy in 1977. The examiner noted that lumbar canal stenosis is a gradually progressive degenerative condition which may be related to remote spinal trauma, but in this case there was insufficient evidence of spinal trauma to warrant a connection. In its December 2012 remand, the Board noted that Dr. G. indicated in an October 1981 letter that the Veteran was treated in 1958 for lumbar sacral instability and lumbar radiculitis, and found that the December 2012 VA examiner's failure to consider this evidence rendered his opinion inadequate. Significantly, although the examiner had declined to offer a definitive opinion as to the etiology of the Veteran's pes planus, noting that there was no written documentation of an in-service injury, event, or illness, he also indicated that it was probable that the bilateral foot disabilities were "natural in their occurrence." The Board found, however, that the Veteran's testimony as to in-service foot symptoms and continuity of foot symptomatology were credible and uncontradicted by the other evidence of record, and granted entitlement to service connection for pes planus. In this regard, the Board notes that veterans are competent to testify to their observations and the Board finds the Veteran's testimony as to his in-service back injury and symptoms since that time to be competent and credible, as it is supported by evidence of his seeking treatment for his back from Dr. Glover in 1958, 1959, and 1960. The Board therefore instructed the RO/AMC to conduct a new examination and one was performed in February 2013. With regard to secondary service connection, the VA physician who conducted the examination wrote: He has flattening of the arches (pes cavus) [sic] which is suspected as natural occurrence not related to injury during his military service. There is insufficient evidence in medical literature to suggest that a pes cavus [sic] deformity is contributory to lumbar stenosis, therefore it is my opinion that veteran's back disability is not due to or aggravated by his bilateral foot disability. There are several aspects of this opinion that render the examination inadequate and require clarification. First, the Veteran is service connected for pes planus, not pes cavus. The Board cannot determine from the examination report whether the examiner erroneously relied on the inaccurate factual premise that the Veteran had pes cavus or if this was simply a transcription error. The RO/AMC should therefore be asked for a new, clarifying opinion as described below. Two other matters require clarification. First, the physician's rationale was that there was "insufficient evidence in medical literature to suggest a pes cavus [sic] deformity is contributory to lumbar stenosis." In its December 2012 remand, however, the Board noted that the April 2012 VA examiner found that the Veteran had excessive pronation in gait and requested that the examiner comment on the significance of excessive pronation in gait. The physician who conducted the February 2013 VA examination did not comment specifically on the effect of excessive pronation in gait and should be asked to do so in his clarifying opinion. The question is not whether as a general matter medical literature indicates an association between pes planus; rather, the question is whether the excessive pronation in the gait of this Veteran caused or aggravated his lumbar spine disability. That question should be specifically answered in light of the evidence in the claims file, including the Veteran's competent and credible lay statements. In addition, there have been multiple diagnoses with regard to the Veteran's back, some of which suggest the presence of arthritis. For example, a September 1995 VA treatment note indicated mild degenerative joint disease of the lumbar spine based on X-ray findings. In addition, August 2007 and January 2009 VA MRI reports indicated multi-level degenerative changes. In a recent decision, the Federal Circuit indicated that the analysis of service connection claims may be different depending on whether the case involves a chronic disease. Walker v. Shinseki, __ F.3d __, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). Arthritis is a chronic disease. 38 U.S.C.A. § 1101(3) (West 2002); 38 C.F.R. § 3.309(a) (2012). The VA physician should therefore note all diagnoses relating to the Veteran's lumbar spine, to specifically include whether or not he has arthritis. Accordingly, the claim for entitlement to service connection for a back disability is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Request a clarifying opinion from the physician who conducted the February 2013 VA examination. (If the physician is unavailable, an opinion should be requested from a different physician). The claims file must be sent to the physician for re-review. The physician should first identify each disorder of the back that has existed since the Veteran filed his claim in January 2006, to include specifically indicating whether the Veteran has arthritis of the back. Then, the physician should indicate whether his references to pes cavus were erroneous, and answer the following question, assuming that the Veteran suffered foot and back injuries in service and that his bilateral foot disability was due to service: Was any current back disability caused or aggravated by his bilateral foot disability? In answering this question, the physician must specifically address whether the documented excessive pronation in gait caused or aggravated any back disorder. The physician should also review his opinion as to whether any current back disability is related to service, and indicate whether he continues to adhere to this opinion, assuming that the Veteran suffered an in-service back injury. A complete rationale for all opinions expressed should be provided. If the examiner is not able to provide an opinion, he should explain why. 2. If the benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. 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). _________________________________________________ M. Mac Acting 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).