Citation Nr: 1326542 Decision Date: 08/20/13 Archive Date: 08/26/13 DOCKET NO. 09-03 091 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to service connection for left lower extremity radiculopathy, claimed as secondary to a service-connected low back disability. 2. Entitlement to service connection for left foot pes planus, claimed as secondary to a service-connected low back disability. 3. Entitlement to service connection for a left leg discrepancy, or a pelvic tilt with an apparent left leg length discrepancy, claimed as secondary to a service-connected low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Juliano, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1986 to June 1986. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) regional office (RO) located in Newington, Connecticut. With regard to the Veteran's claimed left leg length discrepancy, claimed secondary to a low back disability, certain medical evidence of record indicates that rather than having an actual discrepancy in leg length, the Veteran may have a pelvic tilt with an apparent left leg length discrepancy. See VA Examination, March 2013 at 912. Based on the medical evidence of record, it is not clear whether the Veteran has a pelvic tilt condition with an apparent left leg length discrepancy that is related to her service-connected low back disability. The Board acknowledges that the Veteran, as a lay person, claimed service connection for only a left leg length discrepancy, but in light of the medical evidence of record, the Board has considered the Veteran's claim more broadly as for service connection for a left leg discrepancy, or a pelvic tilt with an apparent left leg length discrepancy, as secondary to a service-connected low back disability. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In January 2011, the Veteran indicated that she desired a Travel Board hearing. In her February 2011 substantive appeal, however, the Veteran clarified that she did not want a Board hearing. Therefore, her request for a Board hearing is considered withdrawn. In December 2011, the Board remanded the Veteran's claims for further development. Such development has been completed and associated with the claims file, and these matters are returned to the Board for further review. 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 The Veteran served on active duty from February 1986 to June 1986. She is service-connected for a low back disability. She claims that she has a left leg discrepancy, or a pelvic tilt creating the appearance of a left leg discrepancy, left lower extremity radiculopathy, and left foot pes planus that were caused or aggravated by her service-connected low back disability. In December 2011, the Board remanded the Veteran's claims so that she could be provided with VA examinations. She was subsequently provided with VA examinations in March 2013. The March 2013 VA examination report cites to VA podiatry records dated in February 14, 2006, and also dated in May 2010, that are missing from the claims file. See Report at 889. According to the March 2013 VA examiner, the February 2006 VA podiatry record reflects that the Veteran complained of her back pain affecting her left lower extremity, but none of the objective findings or diagnoses from the February 2006 record were copied into the VA examiner's report. With regard to the missing May 2010 podiatry record, the VA examiner notes that it reflects objective findings of left foot pes planus and a left leg length discrepancy by one-half to three-quarters of an inch, and that diagnoses of "most likely lower back radiculopathy" and left leg length discrepancy with pes planus, left only, were recorded. It appears, however, that the entire May 2010 podiatry record was not copied into the VA examiner's report, such that relevant medical evidence may be missing. The Board also notes that a VA podiatry addendum note dated May 19, 2010 is in the claims file that cites to an original record dated May 18, 2010 that is missing. As there appear to be outstanding medical records relevant to all of the issues on appeal, the Board finds that, regrettably, another remand is necessary to obtain any outstanding VA podiatry records dated in February 2006 and May 2010. With regard to the Veteran's pelvic tilt/left leg length discrepancy claim, the Board notes by way of background that VA physical therapy records relating to the Veteran's service-connected low back disability note a pelvic tilt. See, e.g., January 2010. A December 2009 VA treatment record notes a left lateral lean in sitting, decreased lumbar curvature with an elevated left pelvis, and a right leg length discrepancy. The missing May 2010 VA podiatry record reportedly reflects an objective finding of a one-half to three-quarter inch left leg length discrepancy. The March 2013 VA examiner opined that the Veteran does not in fact have any leg length discrepancy. Rather, the examiner opined that the Veteran has a pelvic tilt (apparently creating the appearance of a leg length discrepancy). The examiner did not, however, provide any etiological opinion as to whether the Veteran's pelvic tilt (and any apparent leg length discrepancy) is caused or aggravated by her service-connected low back disability. In light of the above, the Board finds that a remand is necessary to obtain a new VA examination to clarify the nature and relationship of any pelvic tilt and left leg length discrepancy to her service-connected low back disability. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA podiatry records dated in February 2006 and May 2010, including specifically any such records dated on February 14, 2006, and May 18, 2010, and associate them with the paper or electronic claims file. 2. After the above development has been completed, schedule the Veteran for a VA examination to determine the nature and etiology of any (1) pelvic tilt, and (2) leg length discrepancy. The claims folder should be forwarded to the examiner for review. All indicated studies should be performed, and their results reported. The examiner should be directed to elicit a complete history from the Veteran. The examiner should address as follows: (a) Please address the relationship between any pelvic tilt and leg length discrepancy or apparent leg length discrepancy and the Veteran's service-connected low back disability; (b) Please provide an opinion as to whether it is "at least as likely as not" that any pelvic tilt and/or leg length discrepancy was caused or aggravated by the Veteran's service-connected low back disability or any other disease, injury, or event in service; If aggravation is found, provide an opinion as to whether such aggravation is beyond the normal progression of the underlying disability. A discussion of the rationale underlying any opinions expressed must be included in the examination report, to include reference to pertinent evidence where appropriate. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. If the examiner is unable to offer any of the requested opinions without resort to speculation or otherwise, it is essential that the examiner offer a rationale for such conclusion. 3. Then, perform any additional development necessary, and then readjudicate the Veteran's claims. If any claim remains denied, the Veteran should be provided a Supplemental Statement of the Case (SSOC). After the Veteran and her representative have been given the applicable time to submit additional argument, the claim should be returned to the Board for further review. 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). _________________________________________________ MICHAEL A. PAPPAS 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).