Citation Nr: 1316339 Decision Date: 05/17/13 Archive Date: 05/29/13 DOCKET NO. 06-24 298 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a low back disability, to include as due to service-connected bilateral pes planus (flat feet). 2. Entitlement to service connection for left arm disability. 3. Entitlement to service connection for bilateral leg disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The Veteran had active service from September 1974 to September 1977, and yet-to-be verified service from June 1971 to September 1974. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, that determined new and material evidence had was not received to reopen claims for service connection for a low back injury, numbness of the left arm, and bilateral leg pain. In June 2010, the Board reopened the claim for entitlement to service connection for low back disability and remanded the issue for further development. In November 2012, the Board reopened the claim for left arm disability and bilateral leg disability and remanded the issues for further development. The Veteran has a Virtual VA claims file associated with his appeal, which is a highly secured paperless repository. The Board has reviewed the Virtual file, and to the extent the records therein are not duplicative of the paper file, they were reviewed by the AMC/RO as noted in the February 2013 supplemental statement of the case (SSOC). The case is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. REMAND Regrettably, a decision on this appeal must again be delayed. Prior rating decisions of the Agency of Original Jurisdiction (AOJ) and the Board show the Veteran's dates of service as from September 1974 to September 1977; and, those are the dates for which the AOJ asked the National Personnel Records Center (NPRC) to provide any service treatment records related to the Veteran. On his December 2002 formal claim (VA Form 21-526), however, the Veteran listed his dates of service as from June 1971 to September 1977. His DD Form 214 for the period September 1974 to September 1977 notes prior active service of almost three years. Further, there are service treatment records in the claims file that are dated in 1972. While there may not be additional service treatment records on file, there may be additional service personnel records. The Board notes that the Veteran submitted a September 1975 service personnel record showing that he was involved in a motor vehicle accident, an accident which he claims is related to his current upper and lower extremities conditions. This record was not previously associated with the claims file, thus further raising the possibility of outstanding service records that have not yet been obtained. Moreover, further development is needed in order to obtain an additional medical opinion regarding the Veteran's low back disability claim. In a November 2012 VA examination report, the examiner opined the Veteran's low back disability was not causally related to his service-connected flat feet disability, and the examiner provided reasons and bases for that opinion. The examiner did not, however, opine as to whether the Veteran's flat feet aggravate his low back disability, that is, chronically worsens it. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Therefore, the Veteran's VA claims record must be returned for assessment of that facet of the Veteran's claim. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO must ask the NPRC to verify the Veteran's service for the period prior to September 1974; and, request the NPRC to provide all of the Veteran's service personnel records extant, and any service treatment records not already provided. All efforts to obtain the outstanding military records must be undertaken in accordance with 38 C.F.R. § 3.159(c). 2. After the above is complete, regardless of whether additional records are obtained, send the claims file and any nonduplicative evidence included in the Veteran's electron `ic claims folder to the examiner who conducted the November 2012 examination. If any additional service personnel or service treatment records are added to the claims file, ask the examiner if that alters the opinion rendered in the November 2012 examination report as to a causal relationship with active service. The examiner must provide the underlying medical rationale for any opinion provided. The examiner should also be asked if there is at least a 50-percent probability that the Veteran's flat feet disability aggravates his low back disability, that is, chronically worsens it. If so, the examiner is asked to specify the permanent, measurable increase in the severity of the low back disability that is due to the service-connected flat feet disability. The examiner must provide a medical ration in support of the opinion provided. In the event the examiner who conducted the November 2012 examination is no longer available, refer the claims file and any records included in the Veteran's electronic claims folder to an equally qualified examiner. The substitute examiner must provide a medical rationale in support of all opinions provided. Should the examiner, or a substitute examiner, determine that the requested opinions cannot be rendered without an examination of the Veteran, the AMC/RO will arrange the examination. The claims file and electronic claims folder must be provided for review by the examiner as part of the examination. 3. Thereafter, the AMC/RO must review the claims file and ensure that the foregoing development actions, as well as any other development that may be in order, has been conducted and completed in full. If the examination report is deficient in any manner, undertake corrective action immediately. 4. After completion of all of the above, the AMC/RO should re-adjudicate the claims on appeal. If the decision remains in any way adverse to the Veteran, he and his representative should be provided with an SSOC. The case should thereafter be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. VA will notify him if further action is required on his part. He 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). ______________________________________________ DELYVONNE M. WHITEHEAD 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).