Citation Nr: 1312781 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 08-05 543 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for a low back disability, to include on a secondary basis. REPRESENTATION Appellant represented by: West Virginia Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran served on active duty from August 1974 to April 1975. This case initially came before the Board of Veterans' Appeals (Board) on appeal of a May 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which in pertinent part determined that new and material evidence had not been submitted to reopen the Veteran's previously-denied claim for service connection for lumbosacral strain, and denied service connection for sarcoidosis of the sinuses. In a decision of January 2010, the Board determined that new and material evidence had been received, and reopened the Veteran's claim for service connection for a low back disability. At that same time, the Board remanded both of the above claims for additional development. In a subsequent decision of September 2011, the Board denied entitlement to service connection for a sinus condition, to include sinusitis and sarcoidosis. At that same time, the Board remanded for additional development the issue of entitlement to service connection for a low back disability. The case is now, once more, before the Board for appellate review. Based on correspondence contained in the file, it would appear that, in addition to the issue currently before the Board, the Veteran seeks entitlement to service connection for sciatica secondary to osteoarthritis of the lumbar spine, as well as for "severe bilateral pes planus." Inasmuch as the issue of service connection for sciatica has not been developed or certified for appellate review, it is not for consideration at this time, and is, therefore, being referred to the RO for appropriate development. The issue of service connection for pes planus, however, is "inextricably intertwined" with the issue of entitlement to service connection for a chronic low back disability, and, for reasons which will become apparent, is being REMANDED along with that issue to the RO via the Appeals Management Center (AMC) in Washington, D.C. VA will notify you if further action is required on your part. REMAND As noted above, the issue of entitlement to service connection for pes planus is inextricably intertwined with the issue of entitlement to service connection for a chronic low back disability. In that regard, it is argued that the Veteran's "severe bilateral pes planus" has caused problems with her back. Significantly, following a VA orthopedic examination in November 2011, the examiner indicated that the Veteran's degenerative disc disease of the lumbar spine was "more likely a part of generalized degeneration due to age, as well as severe bilateral pes planus." Accordingly, the issue of entitlement to service connection for a chronic low back disability is premised, at least in part, on the Veteran's potential entitlement to an award of service connection for pes planus. The Board further notes that, at the time of the aforementioned Board remand in September 2011, it was requested that the Veteran be afforded a VA examination, following which the examining physician was to have provided details regarding the onset of any diagnosed low back disability, and offered an opinion as to whether such disability was at least as likely as not (1) the result of disease or injury incurred in or aggravated during, or otherwise related to, the Veteran's active duty; (2) manifested to a compensable degree within one year of the Veteran's discharge from active duty on April 16, 1975, if arthritis was diagnosed; or (3) due to an intervening event(s), to include job-related injuries. To the extent practicable, the examiner was to have rendered an additional opinion specifically addressing: (a) whether any low back disability clearly and unmistakably preexisted the Veteran's entry into service, and, if so, (b) whether it increased in severity during service; and, if so, (c) whether such increase in severity represented the natural progress of the condition, or was beyond the natural progress of the condition (representing a permanent worsening of such disorder). However, following a review of the aforementioned VA examination, it would appear that certain of the findings provided are somewhat contradictory. More specifically, at the initial stages of the examination, and in response to the question whether the Veteran had ever been diagnosed with a thoracolumbar spine condition, the examiner indicated that she did, in fact, suffer from such a condition, specifically, degenerative disc disease of the lumbosacral spine. However, later in that same examination, the examiner indicated that the Veteran did not, in fact, suffer from intervertebral disc syndrome of the thoracolumbar spine. Moreover, while in rendering an opinion regarding the nature and etiology of the Veteran's low back disability, the examiner indicated that he had reviewed the Veteran's claims folder and service treatment records, he made mention only of a single episode of back pain, specifically, on October 3, 1974, with no mention whatsoever of subsequent complaints of low back pain in August 1974 and March 1975. Significantly, during the course of treatment in March 1975, the Veteran indicated that she had been experiencing problems with back pain "off and on" since advanced individual training in October. However, in rendering his opinion, the examiner indicated that the Veteran had served on active duty for only one year, during the course of which she had "complaint regarding her lower back pain." Such a finding raises some question as to whether the examiner was, in fact, aware that the Veteran had complained of lower back problems on more than one occasion during her period of active military service. Moreover, while the examiner provided a negative opinion regarding the relationship between the Veteran's low back disability and her period of active military service, the phrasing of that opinion makes it unclear whether the examiner was, in fact, concluding that the Veteran's low back disability did not have its origin in service, or, in the alternative, that a preexisting low back disability was not aggravated during that same period of active service. Under the circumstances, further development of the evidence would be appropriate prior to a final adjudication of the Veteran's current claim. Finally, the Board observes that, since the issuance of the most recent Supplemental Statement of the Case in July 2012, there have been added to the record additional VA outpatient treatment records which have not yet been considered in the context of the Veteran's claim. Such evidence is pertinent to the Veteran's claim for service connection for a chronic low back disability. Accordingly, absent a waiver (which is not present in this case), this evidence must be referred to the agency of original jurisdiction for initial review. 38 C.F.R. § 20.1304(c) (2011). Under the circumstances, the evidence in question will be returned for initial consideration by the RO. In light of the aforementioned, the case is once again REMANDED to the RO/AMC for the following actions: 1. Any pertinent VA or other inpatient or outpatient treatment records, subsequent to July 2012, the date of the most recent evidence of record, should be obtained and incorporated in the claims folder. The Veteran should be requested to sign the necessary authorization for release of any private medical records to the VA. All attempts to procure such records should be documented in the file. If the RO/AMC cannot obtain records identified by the Veteran, a notation to that effect should be included in the claims file. In addition, the Veteran and her representative should be informed of any such problem. 2. The RO/AMC should then fully adjudicate the issue of entitlement to service connection for bilateral pes planus, to include all necessary and appropriate assistance and notification under the Veterans Claims Assistance Act of 2000 (VCAA), and any development called for by the record. All documentation of the aforementioned should be included in the Veteran's claims file for appellate review. 3. Only after the issue of entitlement to service connection for bilateral pes planus has been fully adjudicated, the Veteran's entire claims file should be furnished to the same VA examiner who conducted the aforementioned VA examination in November 2011, or to another appropriate VA examiner, should that physician be unavailable. Following a review of the Veteran's entire claims file, the examiner must specifically opine as to whether the Veteran currently suffers from degenerative disc and/or joint disease of the lumbosacral spine, or other chronic, clinically-identifiable low back disability, and, if so, whether such disability at least as likely as not had its origin during, or is in some way the result of, the Veteran's period of active military service. Should it be determined that the Veteran does, in fact, suffer from a chronic low back disability, but that the disability in question did not have its origin during her period of active military service, the examiner must opine whether any identified chronic low back disability clearly and unmistakably preexisted the Veteran's period of active military service. Should it be determined that the disability in question did, in fact, preexist the Veteran's period of active military service, the examiner must opine whether that disability clearly and unmistakably underwent a permanent, clinically-identifiable increase in severity beyond natural progress during the Veteran's period of active military service. A complete rationale must be provided for any opinion offered, and all information and opinions, once obtained, must be made a part of the Veteran's claims folder. In addition, the examiner must specify in his report that the claims file and all pertinent Virtual VA records have been reviewed. 4. The RO/AMC should then review the aforementioned report to ensure that it is in complete compliance with the directives of this REMAND, and that the examiner has documented his consideration of all records contained in Virtual VA. If the report is deficient in any manner, the RO/AMC must implement corrective procedures. 5. The RO/AMC must then readjudicate the Veteran's claim of entitlement to service connection for a low back disability, to include as secondary to bilateral pes planus. This adjudication should specifically include consideration of the aforementioned evidence received subsequent to the July 2012 Supplemental Statement of the Case. Should the benefit sought on appeal remain denied, the Veteran and her representative should be provided with a Supplemental Statement of the Case (SSOC) which contains notice of all relevant action taken on the claim for benefits since July 2012. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome in this case. The Veteran need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or matters 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. 2010). _________________________________________________ CHERYL L. MASON 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) (2011).