Citation Nr: 1324637 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 12-23 777 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for a back disorder, claimed as degenerative joint disease with fractures at the first and third lumbar vertebrae. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran served on active duty from October 1948 to October 1949, and from September 1950 to September 1951. This case comes before the Board of Veterans' Appeals (Board) on appeal of December 2010 and February 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. Good or sufficient cause having been shown, the Veteran's appeal has been advanced on the Board's docket under the provisions of 38 U.S.C.A. § 7107 (West 2002) and 38 C.F.R. § 20.900(c) (2012). Upon review of this case, it would appear that, in addition to the issue currently on appeal, the Veteran seeks entitlement to a total disability rating based upon individual unemployability. Inasmuch as that issue has not been developed or certified for appellate review, it is not for consideration at this time. It is, however, referred to the RO for appropriate action. Finally, for reasons which will become apparent, this appeal is being REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. VA will notify you if further action is required on your part. REMAND A review of the record in this case raises some question as to the exact nature and etiology of the Veteran's claimed back disability. In pertinent part, it is contended that the Veteran's current back disorder is in some way causally related to his service-connected pes planus/arthritis of both feet, currently evaluated as 50 percent disabling. Initially the Board observes that the Veteran's service treatment records are unavailable. Those records may have been destroyed in a fire at the National Personnel Records Center in 1973. Significantly, at least two private podiatrists, Gregory Catalano, D.P.M.; and Russell W. Hamilton, D.P.M; have suggested that the Veteran's back disorder might in some way be causally be related to his service-connected foot disability. Significantly, to date, the Veteran has yet to undergo a VA examination for the purpose of determining the nature and etiology of any current back disability. Such an examination is necessary prior to a final adjudication of the Veteran's claim for service connection. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, in light of the aforementioned, the case is REMANDED to the RO/AMC for the following actions: 1. Any pertinent VA or private inpatient or outpatient treatment records, subsequent to May 2012, the date of the most recent treatment records on file, should be obtained and incorporated in the claims folder. This includes securing any records from the appellant's treating podiatrists which show evidence of an altered gait secondary to pes planus. The Veteran should be requested to sign the necessary authorization for release of any private medical records to the VA. All attempts to procure such records should be documented in the file. If the RO/AMC cannot obtain records identified by the Veteran, a notation to that effect should be included in the claims file. In addition, the Veteran and his representative should be informed of any such problem. 2. Thereafter, the Veteran must be afforded a VA orthopedic examination in order to more accurately determine the exact nature and etiology of his current back disability. The Veteran is hereby notified that it is his responsibility to report for the examination, and to cooperate in the development of his claim. The Veteran is further to be advised that the consequences for failure to report for a VA examination without good cause may include denial of his claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that a Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to his last known address. It should also be indicated whether any notice sent was returned as undeliverable. Following completion of the orthopedic examination, the examiner must opine whether it is at least as likely as not that any diagnosed back disability is proximately due to, the result of, or aggravated by the Veteran's bilateral pes planus with arthritis. A complete rationale must be provided for any opinion offered, and all information and opinions, once obtained, must be made a part of the Veteran's claims folder. The claims folder, to include the appellant's Virtual VA file, must be made available to and reviewed by the orthopedic examiner prior to completion of the examination. The examiner must specify in his report that the claims file and Virtual VA records have been reviewed. 3. The RO/AMC should then review the examination report to ensure that it is in complete compliance with the directives of this REMAND, and that the examiner has documented his consideration of all records contained in Virtual VA. If the report is deficient in any manner, the RO/AMC must implement corrective procedures. 4. The RO/AMC must then readjudicate the Veteran's claim for service connection for a back disability, claimed as degenerative joint disease with fractures at the first and third lumbar vertebrae. Should the benefit sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case which must contain notice of all relevant action taken on the claim for benefits since August 2012. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome in this case. The Veteran need take no action unless otherwise notified. 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). _________________________________________________ DEREK R. BROWN 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).