Citation Nr: 1323973 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 08-33 144 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a lumbar spine disorder. 2. Entitlement to service connection for bilateral pes planus (claimed as flat feet). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1966 to January 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2008 decision of the RO, which in pertinent part, denied service connection for a lumbar spine disability and pes planus. The Veteran requested a hearing with the Board on his VA Form 9 Substantive Appeal; however, the record reflects that the hearing was cancelled by the Veteran. A review of the Virtual VA paperless claims processing system reveals documents that are pertinent to the present appeal. The appeal is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND The Board finds that these matters must be remanded for further evidentiary development. The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, the Veteran contends that his current lumbar spine and flat feet are due to his period of active service. In particular, he reports entering service with flat feet and having the condition aggravated during service (worsened through the exposure to chemicals in Vietnam). In February 2008, VA made a formal finding of unavailability of the Veteran's service treatment records and remunerated the efforts undertaken to retrieve the records. It is not clear whether or not the Veteran received a copy of the formal finding. The Board notes that where service medical records are presumed destroyed, the Board's obligation to explain its findings and to consider the benefit of the doubt rule is heightened. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). VA treatment records show that in July 1997, the Veteran was noted to have pes planus with tenderness over the plantar surface of the left heel. Also, heel pain (probably plantar fasciitis) was also noted. In June 2010, the Veteran complained of having left foot and heel pain and small spurs were shown upon X-ray study (calcaneal spur). In July 2011, plantar fasciitis and calcaneal spur were diagnosed. In his September 2006 VA claim form, the Veteran avers that his back pain was sustained around 2000. VA treatment records also show that the Veteran currently has degenerative disc disease of the lumbar spine with radiation of pain to his lower extremities. A muscle strain to the lumbar back was noted in 2005 after complaints of pain for one week following yard work. X-rays showed mild multilevel discogenic disease and facet arthropathy. Eventually, lumbar radiculopathy was diagnosed in 2007 and complains of chronic lumbar back pain has been noted consistently throughout the VA treatment records from approximately 2005 through 2012. The Board notes that a VA examination has not been performed for either the lumbar spine disorder or pes planus. As delineated in 38 C.F.R. § 3.159(c)(4), a VA examination to address the question of etiology as related to service is required when a veteran presents a claim for service connection in which there was a pertinent event, injury, or disease in service; there is evidence of current disability; the medical evidence of record does not contain sufficient competent medical evidence to decide the claim; and the veteran indicates that the claimed disability or symptoms may be associated with service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board recognizes that the Veteran is competent to report his symptomatology, to include the onset of his symptoms. In this case, the Veteran's lay contentions are of particular importance as the current record reflects unavailable service treatment records. There is evidence of a current lumbar spine and pes planus disorders and the Veteran's lay assertion indicating that his pre-existing pes planus was aggravated by service and that his back condition was linked to service. As these matters will be developed further, the Board will afford the Veteran VA examinations pursuant to VA's duty to assist. Additionally, the Board will give the Veteran an opportunity to submit any outstanding relevant private treatment records and ask the RO to locate any additional outstanding VA records that are pertinent to his claims. See Bell v. Derwinski, 2 Vet. App. 611 (1992). (records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA during the consideration of a claim). Accordingly, the case is REMANDED for the following action: 1. The RO should ascertain whether the Veteran has received written notice of the formal finding of unavailability of his service treatment records (formal finding memorandum dated February 2008). If he has not, the Veteran should be notified of the efforts VA has made to obtain his service treatment records and reiterate the types of acceptable evidence that the Veteran can submit to support his claim. 2. The RO then should take appropriate steps to contact the Veteran in order to ask him to provide the names and addresses of all health care providers who have treated him for the claimed lumbar spine or flat feet conditions since service. After acquiring this information and obtaining any necessary authorization, the RO should attempt to obtain copies of these records and associate them with the claims file. 3. The RO also should have the Veteran scheduled for a VA examination to determine the nature and likely etiology of the lumbar spine condition and pes planus. The Veteran's claims folder must be made available to the examiner for review in connection with the examination. All indicated tests should be performed. After examining the Veteran and reviewing the entire record as to his lumbar spine disability, the examiner should provide an opinion as to whether it is at least as likely as not (e.g., a 50 percent or greater probability) that any current lumbar spine disability had its clinical onset during service or otherwise is due an injury or another event or incident of that service. Also, provide an opinion as to whether it is at least as likely as not that the lumbar spine disability was caused by or a result of any of the Veteran's service-connected disabilities (to include peripheral neuropathy of the upper and lower extremities). After examining the Veteran and reviewing the entire record as to his flat feet disability, the examiner should provide an opinion as to whether it is at least as likely as not (e.g., a 50 percent or greater probability) that any current disability is due to pre-existing pes planus that was aggravated beyond the natural progression by service, to include exposure to harmful chemicals in the Republic of Vietnam. A rationale must be provided for all findings and conclusions reached. The examiner should identify and explain the medical basis for the opinion, identify the pertinent evidence of record, and include any applicable medical treatises referenced. 4. After completing all indicated action, the RO should readjudicate the claims remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran 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). _________________________________________________ STEPHEN L. WILKINS 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).