Citation Nr: 1317853 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 10-41 581 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a right foot disability. 2. Entitlement to service connection for a right knee disability as secondary to right foot disability. 3. Entitlement to service connection for degenerative disc disease with degenerative joint disease of the lumbar spine as secondary to right foot and right knee disabilities. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1968 to May 1969. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In a June 2011 decision, the Board denied the Veteran's claimed issues. The Veteran appealed the denial of service connection to the U.S. Court of Appeals for Veterans Claims (Court). In July 2012, the Court granted a Joint Motion for Remand (JMR) filed by the parties which requested that the June 2011 decision be vacated and remanded. The appeal has now returned to the Board for further development. The issues were previously remanded in February 2013 for additional development. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Veteran claims that she has a right foot disorder due to an in-service injury, and right knee and back disabilities due to her right foot disorder. Although the issues have been remanded once, the Board finds that further action on the claims on appeal is warranted. The Veteran underwent a VA examination in November 2008. The report of that examination notes that the Veteran stated that she injured her right foot in January 1969, causing a fracture to the navicular bone. It was diagnosed as an avulsion fracture to the navicular. She said that ever since, she has occasional swelling and pain in the foot with weather changes. After a physical examination, the examiner opined that the current complaint of right foot pain is not the same condition as her in-service avulsion fracture. The examiner reasoned that the in-service fracture has healed without residuals. The November 2008 VA examination report notes that the Veteran fell, injuring her right patella in April 2006 and August 2006. The Veteran reported her back pain began gradually in the 1990s, without any trauma. The Veteran related the back pain and knee pain to the prior right foot injury. After physical examination, the examiner opined that the right knee disability and lumbosacral spine disability are not due to the right foot disability. In the JMR, the parties stipulated that the November 2008 VA examination opinion is inadequate. The case was remanded in February 2013 for an additional VA examination to clarify any diagnosis of foot, knee, and back disorders and for opinions on each disorders' etiology. The Veteran underwent another VA examination in February 2013. Though the examiner gave diagnoses of hallux valgus, degenerative joint disease of the right knee, and degenerative joint disease of the thoracolumbar spine, the Board finds the opinions as to the etiology of each disorder are not clear. First, the examiner noted that there was no objective evidence of a right foot navicular fracture, then the examiner noted that a right foot navicular fracture was at least as likely as not caused by service. Second, the examiner found "there was no nexus between" the Veteran's right foot fracture and diagnosed foot, back, and knee disorders, but did not give a rationale for that opinion. The Board finds another VA examination by a different examiner is necessary in order to obtain a detailed rationale to support the medical opinions, to include specific facts, evidence, and medical principles relied upon to support the medial opinion. 38 C.F.R. § 4.2 (noting that if the examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes); see also Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (finding that when the VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate). Finally, while on remand, updated treatment records must be obtained. Accordingly, the case is REMANDED for the following action: 1. The RO should request the Veteran provide the names and addresses and dates of treatment of all medical care providers, VA and non-VA, that have provided any treatment pertinent to her right foot, right knee, and back disorder claims. After the Veteran has signed the appropriate releases, those records not already in the claims file should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. If records identified by the Veteran cannot be obtained, a notation to that effect should be inserted in the file. The Veteran and her representative are to be notified of unsuccessful efforts in this regard, in order to allow her the opportunity to obtain and submit those records for VA review. 2. The Board notes that in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. A review should be conducted of the electronic file, and if documents contained therein are deemed to be relevant to the issues on appeal and are not duplicative of those already found in the paper claims file, action should be taken to assure that those records are made available (whether by electronic means or by printing) to any medical provider who is asked to review the claims file and provide medical opinions in conjunction with the development requested herein. 3. The Veteran should be scheduled for an appropriate VA examination by someone other than the February 2013 examiner to ascertain the nature and etiology of her claimed right foot disorder and associated right knee and back disorders. It is imperative that the claims folder be reviewed in conjunction with the examination. Any medically indicated special tests should be accomplished and all special tests and clinical findings should be clearly reported. Prior to the examination, the claims folder and a separate copy of the Remand must be made available to the physician for review of the case. A notation to the effect that this record review took place should be included in the report. Right Foot Disability: The examiner should identify any current right foot disability that is shown on examination or otherwise indicated in the record at any time since October 2007. For each right foot disability identified, the examiner should provide an opinion or comment as to the following inquiry: (a) Is it at least as likely as not (50 percent probability or higher) that the right foot disability is causally related to any event or incident in service, to include her documented right foot fracture. Right Knee & Lumbar Spine Disability. The examiner should identify any current right knee and/or lumbar spine disability that is shown on examination or otherwise indicated in the record at any time since October 2007. For any current right knee and/or lumbar spine disability that is identified, the examiner should provide an opinion or comment as to the following inquiries: (b) Is it at least as likely as not (50 percent probability or higher) that the right knee or back disability is causally related to any event or incident in service, to include a right foot injury; (c) If the Veteran's current right foot disability is etiologically related to service, is it at least as likely as not (50 percent probability or higher) that the current right knee or back disability is causally related to a current right foot disability; and (d) If the Veteran's current right foot disability is etiologically related to service, is it at least as likely as not (50 percent probability or higher) that the current right knee or back disability is aggravated by a current right foot disability. Opinions should be provided based on the results of examination, a review of the medical evidence of record, and sound medical principles. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 4. The Veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent must be associated with the claims folder. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on her claims. 5. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed. All applicable laws and regulations should be considered. If any benefit sought remains denied, the Veteran and her representative should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. 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. 2012). _________________________________________________ DAVID L. WIGHT 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).