Citation Nr: 1310429 Decision Date: 03/29/13 Archive Date: 04/09/13 DOCKET NO. 10-40 266 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to a compensable evaluation for status post fracture of the right third metatarsal (right foot disability). 2. Entitlement to service connection for a low back disorder, to include as secondary to service-connected disability. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Postek, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1995 to October 1999. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office and Insurance Center (RO) in Philadelphia, Pennsylvania. In April 2011, the Veteran testified at a Travel Board hearing before the undersigned Acting Veterans Law Judge at the RO in Philadelphia, Pennsylvania. A transcript of the hearing is of record. During the hearing, the Veteran's service connection claim for a low back disorder was expanded to include a theory of entitlement on a secondary basis to his service-connected right foot disability, as reflected in the statement of issues above. 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 Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claims. Remand is required to obtain outstanding VA treatment records and fully adequate examinations, as well as to ensure the Veteran is provided with adequate notice. Regarding the service connection claim, remand is required for an examination and updated notice. The Veteran was afforded a VA examination in January 2010 in relation to his claim for service connection for a low back disorder. During the examination, the Veteran reported continuing symptoms of low back pain radiating into his left leg with onset during service. The examiner diagnosed lumbar strain with left lower extremity radiculopathy and opined that the Veteran's current disorder was not caused by or a result of the Veteran's service. As rationale, the examiner stated that the Veteran's spine was found to be normal on his October 1999 separation examination. In Dalton v. Nicholson, 21 Vet. App. 23 (2007), the United States Court of Appeals for Veterans Claims (Court) found that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service symptoms and, instead, relied on the absence of evidence in the Veteran's service treatment records to provide a negative opinion. Such is the case here. Although the Veteran's history was noted in the introduction of the January 2010 examination report, in rendering the opinion, the VA examiner did not address the Veteran's reported in-service symptoms nor his report of ongoing symptoms thereafter. The Board notes that an October 1999 service discharge report of medical history noted reports of back pain. In addition, the Veteran has credibly reported sustaining an injury to his back in 1997 while serving in Japan with complaints of pain in service thereafter. As such, this opinion is inadequate, and a remand for a new examination is necessary prior to deciding this claim. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (indicating an opinion is considered adequate when based on consideration of an appellant's medical history and examinations and describes the disability in sufficient detail so Board's evaluation of the claimed disability is a fully informed one); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). In addition, as the Veteran is now also claiming service connection on a secondary basis, an examination and resulting opinion addressing whether any current low back disorder is secondary to the Veteran's service-connected right foot disability is needed to have sufficient medical evidence of record to decide the Veteran's claim. In regard to the claim for an increased rating for his right foot disability, remand is also required for an updated examination. The Veteran was most recently afforded a VA examination in January 2010. During the April 2011 hearing, the Veteran's representative stated the Veteran's disability had worsened and indicated that the Veteran walked with a small limp or gait with instability, with constant pain due in part to his right foot disability. The Veteran indicated that he was also experiencing aching discomfort. Based on this testimony and a review of the claims file, to include the Veteran's most recent VA examination, the Board finds that the Veteran is essentially alleging a worsening of his right foot disability symptoms since the last VA examination. When a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Therefore, a VA examination is necessary for the purpose of ascertaining the current severity and manifestations of the Veteran's service-connected right foot disability. Furthermore, as the case is already being remanded, the Board finds that the Veteran should be provided with proper notice in this regard for his low back claim. Lastly, the Veteran testified at the hearing that he was receiving VA treatment. A review of the claims file shows that VA treatment records dated from February to March 2010 are of record. As such, any outstanding, pertinent medical records should be obtained and associated with the claims file. 38 U.S.C.A. § 5103A(c) (West 2002); Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his right foot and low back disorders. After acquiring this information and obtaining any necessary authorization, the RO/AMC should obtain and associate these records with the claims file. The RO/AMC should also obtain any outstanding VA treatment records pertinent to the Veteran's claims, including records from the Philadelphia VAMC. 2. The RO/AMC should provide the Veteran with all necessary notice in regard to his claims, particularly with regard to the claim for service connection for a low back disorder as secondary to his service-connected status post fracture of the right third metatarsal. 3. After any additional evidence is associated with the claims file, the Veteran should be afforded a VA examination(s) to ascertain the current severity and manifestations of his service-connected right foot disability, as well as the nature and etiology of any current low back disorder. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The supporting rationale for all opinions expressed must be provided. If the required opinion cannot be provided, the examiner should explain why the opinion cannot be provided. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements and provide an opinion as to the following: a. The examiner should comment on the severity of the Veteran's service-connected status post fracture of the right third metatarsal, to include reporting all signs and symptoms necessary for rating the disability under the rating criteria. To the extent possible, the examiner should distinguish between symptoms associated with the service-connected right foot disability and any symptoms associated with a nonservice-connected disorder. If the examiner is unable to distinguish the symptomatology, the examiner should so state in the report. b. The examiner should identify any current low back disorder. Then, for each diagnosed disorder, to include degenerative disc disease, the examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that the disorder manifested during or is otherwise etiologically related to active duty service. Additionally, for each currently diagnosed low back disorder, the examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that the disorder was caused or aggravated by the Veteran's service-connected status post fracture of the right third metatarsal. The examiner is asked to specifically consider the Veteran's statements of an in-service low back injury while serving in Japan in 1997 and ongoing symptomatology thereafter. 4. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ K. MILLIKAN 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 your appeal. 38 C.F.R. § 20.1100(b) (2012).