Citation Nr: 1326260 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 10-37 740 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for bilateral flat feet (pes planus). 2. Entitlement to service connection for a low back disorder due to bilateral pes planus. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran served on active duty from April 1966 to March 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which, inter alia, denied the Veteran's April 2009 claims for entitlement to service connection for bilateral flat feet and entitlement to service connection for a lower back disorder as a complication of flat feet. In support of his claim, the Veteran testified at a travel board hearing at the RO in May 2011 before the undersigned Veterans Law Judge (VLJ). During the hearing the Veteran submitted additional evidence and waived his right to have the RO initially consider it. 38 C.F.R. §§ 20.800, 20.1304 (2012). 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 Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). A medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but: (A) Contains competent lay or medical evidence of a currently diagnosed disability or persistent or recurrent symptoms of disability; (B) Establishes that the Veteran suffered an event, injury or disease in service, or has a disease or symptoms of a disease listed in §§ 3.309, 3.313, 3.316, or 3.317 manifesting during an applicable presumptive period provided the claimant has the required service or triggering event to qualify for that presumption; and (C) Indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds that a VA examination is warranted because the McLendon elements are met. With respect to the questions of an event or injury in service and the possibility of an association with the claimed disability or symptoms, the Board finds that the Veteran's May 2011 hearing testimony constitutes competent and credible lay evidence thereof. Specifically, at his May 2011 hearing, the Veteran competently and credibly testified that the combat boots that he was issued in service did not seem to fit correctly on his feet, and caused pain in his feet, legs, and knees which slowly increased in severity commensurate with the duration of use of the boots. See May 2011 transcript, pp. 3, 6-7. The Veteran reported that he had no problems with his feet prior to service, and this testimony is corroborated by his November 1965 Induction Reports of Medical Examination and Medical History. Id., p. 6. He further testified that the pain continued to worsen after service, which led him to seek private treatment in the early 1970s from Dr. Stidd, who provided him with a plaster cast and shoe insoles. Id., pp. 3, 7-9, 12. The Veteran explained that he continued to wear the insoles from Dr. Stidd until the late 1980s, at which time they "broke down" and he replaced them with Dr. Scholl's insoles due to cost. Id., p. 8. The Veteran stated that the pain in his feet became intolerable around 2003, at which time he sought treatment from Dr. Hladik, who had purchased Dr. Stidd's practice. Id., p. 8. He further stated that he also took physicals and received physical therapy treatment from his employer, Cummings Engine Company, and their affiliates, Cove Hall and Cummings Occupational Health, in the late 1980s and early 1990s, but that they had lost their records in a 2008 flood and shredded all records older than 10 or 15 years. Id., pp. 4-5, 9-10. The Veteran's private treatment records further corroborate his lay testimony. Specifically, a January 1996 record documents that the Veteran was returning to the clinic 20 years after receiving orthotics for his heel pain and plantar fasciitis, because those orthotics had worn out and he wanted a new pair. A November 2002 record from Dr. Hladik likewise specifically references the Veteran's treatment from Dr. Stidd approximately 20 years earlier. Consequently, the Board finds that the Veteran's lay testimony is competent and credible, and the McLendon questions of an event or injury in service and the possibility of an association with the claimed disability or symptoms are satisfied. With respect to the remaining McLendon element, competent lay or medical evidence of a currently diagnosed disability or persistent or recurrent symptoms of disability, the Board notes that the Veteran is competent to observe that pes planus. Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (a layperson is competent to observe painful feet and pes planus). Additionally, Dr. Hladik diagnosed the Veteran with a short Achilles tendon and Achilles tendon contracture in September 2003, and with pes valgus-type feet and continued bilateral heel pain in November 2003. While these diagnoses were rendered prior to the date of claim, an examination is warranted to determine whether the diagnoses have resolved themselves prior to the filing of the Veteran's claim, and whether they are acute or chronic-particularly because the Veteran has testified to ongoing symptoms. Romanowsky v. Shinseki, No. 11-3272 (Vet. App. July 10, 2013). While the Board recognizes that such single judge decisions carry no precedential weight, they may be relied upon for any persuasiveness or reasoning they contain. Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992). Consequently, a VA examination is required to diagnose the Veteran's current bilateral foot disorders and determine whether they are related to or had their onset in service. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to the Veteran's claimed low back disorder, he testified that it is secondary to his bilateral foot disorder. See May 2011 transcript, pp. 4, 10. As such, the Board finds that remand of that issue is warranted because it is inextricably intertwined with the issue of service connection for a bilateral flat feet disorder. Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180 (1991) (issues are inextricably intertwined when a decision on one issue would have a significant impact on another issue). On remand, if the VA examiner finds that any foot disorder is at least as likely as not related to service, then he or she should opine as to whether the Veteran's claimed back disorder is at least as likely as not to have been caused or aggravated beyond the natural progress of the disease by that foot disorder. As the appeal is being remanded for development, the RO should ask the Veteran to identify any additional, pertinent medical treatment that he has received for his feet and low back, and take appropriate measures to obtain those records. The RO should specifically request the Veteran's authorization to attempt to obtain treatment records from Cummings Engine Company and their affiliates, Cove Hall and Cummings Occupational Health, which the Veteran identified at his May 2011 travel board hearing. Any pertinent VA treatment records should either be made accessible on Virtual VA or be printed and added to the file. See 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992); see also Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (an adequate VA medical examination must consider the Veteran's pertinent medical history). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask that he identify any outstanding VA and non-VA records pertaining to his bilateral foot and low back disorders that are not already of record, including reports from Cummings Engine Company and their affiliates, Cove Hall and Cummings Occupational Health, which the Veteran identified at his May 2011 travel board hearing. Then take appropriate measures to request copies of any outstanding records of pertinent VA or private medical treatment and associate them with the claims file. Any negative response should be in writing and associated with the claims file. 2. Notify the Veteran that he may submit any additional information or evidence to help support his claim, to include lay statements of the nature and onset of his bilateral foot and low back symptoms from himself as well as from other individuals who have first-hand knowledge of such symptoms. He should be provided an appropriate amount of time to submit this information/evidence. 3. After associating all outstanding records regarding the claimed bilateral foot disorders with the claims folder, obtain a medical examination from an orthopedist, preferably with foot and ankle expertise, with opinions as to the following questions: a) To what diagnosis (or diagnoses) is the Veteran's reported bilateral foot pain attributable? b) Did the Veteran's diagnosed short Achilles tendon, Achilles tendon contracture, and pes valgus-type feet resolve prior to April 2009? c) For each foot disorder currently diagnosed, and for each diagnosis listed in b), above, which did not resolve prior to April 2009, please opine as to whether it is at least as likely as not that the disorder is related to or had its onset in service. In making this determination, please consider the Veteran's competent and credible testimony that he began experiencing pain in his feet, legs, and knees which slowly increased in severity commensurate with the duration of use of his combat boots; has experienced increased pain ever since; and has used shoe insole orthotics for same beginning in the 1970s. d) If any foot disorder is at least as likely as not related to service, then the examiner should opine as to whether the Veteran's claimed back disorder is at least as likely as not to have been caused or aggravated beyond the natural progress of the disease by that foot disorder. In offering any opinion, the examiner should take into consideration all the evidence of record, to include medical records as well as the Veteran's lay statements, accepted medical principles, and objective medical findings. All opinions expressed should be accompanied by a supporting rationale. An examiner's report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. See Jones v. Shinseki, 23 Vet. App. 382 (2010). As such, if the examiner is unable to offer an opinion, it is essential that the examiner provide a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge. 4. After providing the Veteran adequate time to respond, and after conducting any further development deemed warranted, readjudicate the appeal. If any claim remains denied, issue a supplemental statement of the case to the Veteran and his representative and provide an opportunity to respond before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ C. CRAWFORD 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).