Citation Nr: 1318603 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 09-45 749 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a low back disability, to include as secondary to a service-connected residuals of a right foot injury, status post triple arthrodesis. 2. Entitlement to an initial rating in excess of 10 percent for residuals of a right foot injury, status post triple arthrodesis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served on active duty from May 1976 to January 1979. This matter is before the Board of Veterans' Appeals (Board) on appeal from November 2007 and February 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. 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 As to the claim of service connection for a low back disability, the Veteran claims his disability was either caused directly by his military service or by the gait change brought about by his service-connected right foot disability. In this regard, service treatment records document the Veteran's complaints and treatment for low back strain in December 1977. Additionally, the post-service record document's the Veteran's complaints and treatment for low back pain with lumbosacral spine disk narrowing. Moreover, the Board finds that the Veteran is credible to report on the objective symptoms of his low back disability in-service and since that that time, even if not documented in his treatment records, because these symptoms come to him through his senses. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Given this history, the Board finds that a remand is required to obtain an opinion as to the origins of the Veteran's current low back disability. See 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006); Also see 38 U.S.C.A. § 1131 (West 2012); 38 C.F.R. §§3.303, 3.310 (2012); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (holding that compensation is payable when service-connected disability has aggravated a non-service-connected disorder). As to the claim for a higher initial rating for residuals of a right foot injury, the record shows that the Veteran was provided a VA examination in November 2008. However, the Board does not find the examination adequate because the examiner failed to adequately explain why he could not provide an opinion as to the degree to which pain would further limit function of the right foot without resorting to speculation. See Jones v. Shinseki, 23 Vet. App. 382 (2010); Also see 38 C.F.R. §§ 4.40, 4.45 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995). As to both the issues on appeal, while the record shows that the Veteran receives ongoing treatment from the Memphis VA Medical Center, his post-April 2005 treatment records do not appear in the claims file. Similarly, while Dr. Batey notified VA in August 2008 that the Veteran had received treatment at The Doctors' Clinic of Union City since the 1980's, none of these treatment records have been associated with the claim's file. Therefore, the Board finds that an appeal is also required to request these records. See 38 U.S.C.A. § 5103A(b) (West 2002); Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA adjudicators are deemed to have constructive notice of VA treatment records); Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992) (holding that when reference is made to pertinent medical records, VA is on notice of their existence and has a duty to assist the Veteran to attempt to obtain them). Finally, it was noted on VA examination in November 2008 that the Veteran receives Social Security Administration (SSA) disability benefits based upon his back and right foot. However, VA has not obtained any records from SSA. Therefore, on remand the RO should request any available SSA records. See Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992) (VA's duty to assist includes obtaining SSA decision and supporting medical records pertinent to VA claim). Accordingly, the appeal is REMANDED to the RO/AMC for the following actions: 1. The RO/AMC should obtain and associate with the claims file, either physically or electronically, all of the Veteran's post-April 2005 treatment records from the Memphis VA Medical Center. All actions to obtain the requested records should be documented fully in the claims file. 2. The RO/AMC should request from SSA complete copies of any disability determination(s) it has made concerning the Veteran and copies of the medical records that served as the basis for any such decision(s). If these records are not available, a negative reply is required. 3. The RO/AMC, after obtaining an authorization from the Veteran, should obtain and associate with the claims file, either physically or electronically, all of his post-1980 treatment records from The Doctors' Clinic of Union City. All actions to obtain the requested records should be documented fully in the claims file. 4. After undertaking the above development to the extent possible, the RO/AMC should provide the Veteran with a VA examination by an appropriate examiner to obtain opinions as to the diagnosis and origins of his low back disability. The claims file should be provided to and reviewed by the examiner in connection with the examination. After a review of the record on appeal, all needed testing and studies, and an examination of the claimant, the examiner should provide answers to the following questions: a. What are the diagnoses of the Veteran's low back disabilities? b. As to each diagnosed low back disability, is it at least as likely as not (i.e., 50% or greater probability) that it had its clinical onset during active service or is related to any in-service disease, event, or injury? In providing an answer to this question, the examiner should consider the fact that the service treatment records document the Veteran's treatment for a low back strain in December 1977 and that he is competent to report on the observable symptoms of his disability in-service and since that time. c. As to each diagnosed low back disability, is it at least as likely as not (i.e., 50% or greater probability) that it was caused by any of his service- connected disabilities or aggravated by any of his service-connected disabilities including the alleged gait change caused by his service-connected right foot disability? In providing an answer to the above question, the examiner is advised that the term "aggravation" is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is found, the examiner should provide a base-line as to the severity of the disability before being aggravated. If the examiner cannot provide an answer to any of the above questions, the examiner is advised that he/she should explain why the requested opinion cannot be provided (i.e., because the limits of medical knowledge had been exhausted or because further information to assist in making the determination is needed such as additional records and/or diagnostic studies). If the examiner cannot provide the answer because further information to assist in making the determination is needed, all reasonable steps to obtain this missing information should be exhausted before concluding that the answer cannot be provided. A complete rationale with citation to relevant evidence found in the claims file should be provided for each opinion offered. 5. The RO/AMC should provide the Veteran with a VA podiatric VA examination. The claims file should be provided to the examiner in connection with the examination. All indicated tests and studies deemed appropriate by the examiner, including X-rays, must be accomplished and all clinical findings should be reported in detail. After a review of the record on appeal and an examination of the claimant, the examiner should provide answers to the following questions as to the right foot disability: a. The examination should conduct complete range of motion studies with specific findings. b. The examination should discuss the presence or absence of any weakened movement, including weakened movement against varying resistance, excess fatigability with use, incoordination, painful motion, pain with use, and provide an opinion as to the degree to which this pain further limits any motion. c. The examiner should provide an opinion as to whether the totality of the Veteran's adverse symptomatology is best characterized as a "moderate," "moderately severe," or "severe" foot injury? In providing answers to the above questions, the examiner should comment on and/or take note of the fact that the claimant is competent report on the observable symptoms of his disability. If the examiner cannot provide an answer to any of the above questions, the examiner is advised that he/she must explain why the requested opinion cannot be provided (i.e., because the limits of medical knowledge had been exhausted or because further information to assist in making the determination is needed such as additional records and/or diagnostic studies). If the examiner cannot provide the answer because further information to assist in making the determination is needed, all reasonable steps to obtain this missing information should be exhausted before concluding that the answer cannot be provided. A complete rationale with citation to relevant evidence found in the claims file should be provided for each opinion offered. 6. The RO/AMC should thereafter readjudicate the claims. If any of the benefits sought on appeal remain denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC) which SSOC includes notice of the laws and regulations governing the claims. A reasonable period of time should be allowed for response before the appeal is returned to the Board. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).