Citation Nr: 1322737 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 10-14 742 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for a low back disorder, claimed as secondary to service-connected moderate pes planus. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran served on active duty from March to July 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In January 2011, the Veteran testified at a Board hearing held before the undersigned Veterans Law Judge in Newark, New Jersey. A copy of the transcript is of record. The Board has not only reviewed the Veteran's physical claims file but also the file on the "Virtual VA" system to ensure a total review of the evidence. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND A remand is necessary for three reasons. First, the evidence shows that the Veteran is in receipt of Social Security benefits which may potentially be relevant to the claim but those records are not associated with the claims file. Therefore, a remand is needed to obtain the records. Next, the Veteran testified that he has received private treatment for his back from Drs. Ani, Rosenthal, Chessex, and Jablin. While the evidence includes a medical opinion from Dr. Jablin, treatment records from these private physicians are not of record. Since VA has notice of outstanding private treatment records that are potentially relevant to this claim on appeal, there is a duty to obtain these records. Finally, the VA examinations in January 2009 and March 2010 addressed a direct relationship between the Veteran's low back disorder and pes planus (in the negative) but did not adequately address whether the Veteran's back disorder was aggravated by pes planus. Therefore, an addendum opinion is needed. Accordingly, the case is REMANDED for the following actions: 1. Obtain from the SSA a copy of its decision(s) awarding the Veteran disability benefits, as well as copies of all medical records underlying the determination(s). If the requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the Veteran and his representative should be informed in writing. 2. Obtain the necessary authorization from the Veteran to obtain any outstanding treatment records from Drs. Ani, Rosenthal, Chessex, and Jablin. All efforts to obtain such records should be fully documented, and all facilities must provide a negative response if records are not available. If the requested information is unavailable, the Veteran and his representative should be apprised of such and given the opportunity to submit the requested information. 3. After completion of the requested development above, furnish the Veteran's claims file to the physician who conducted the March 2010 VA examination and prepared the medical opinion (or a suitable substitute if that VA physician is unavailable) for the purpose of preparing an addendum opinion. All efforts made should be documented and incorporated into the claims file. The physician should specifically address whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) the Veteran's current back disorder is aggravated (Note: aggravation connotes a permanent worsening above the base level of disability, not merely acute and transitory increases in symptoms or complaints.) by the service-connected pes planus. If aggravation is found, the physician should identify the baseline level of severity of the back disorder prior to the onset of aggravation, or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity. A rationale should be given for all opinions and conclusions expressed. If an opinion cannot be rendered without resorting to speculation, then an explanation for why it would be speculative to respond must be provided. If an additional clinical evaluation is necessary to render the requested information, then that opportunity should be made available. 4. Thereafter, readjudicate the issue. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate time period within which to respond thereto. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). He is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2012). This claim must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ L. HOWELL 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).