Citation Nr: 1334375 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 04-39 443 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a disability manifested by bilateral foot pain, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 2. Entitlement to service connection for a low back disability, claimed as secondary to a bilateral foot disability, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 3. Entitlement to service connection for a shoulder disability, claimed as secondary to a low back disability, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from May 1973 to May 1977 and from June 1991 to November 1991. This case comes to the Board of Veterans' Appeals (Board) on appeal of a June 2004 rating decision of the Columbia, South Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied service connection for bilateral foot, low back, shoulder, and psychiatric disabilities. The case was remanded by the Board in July 2006, June 2009, and December 2010. By decision in February 2012, the Board denied service connection for bilateral foot, low back, shoulder, and psychiatric disabilities. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court), and the Board's decision was vacated pursuant to a March 2013 memorandum decision. The Court vacated the Board's decision as to foot, back, and shoulder disabilities, and considered the issue related to a psychiatric disability abandoned. The Court instructed the Board to further discuss the adequacy of the most recent VA examination, including a discussion of the Board's order that the examination be conducted by a specialist in orthopedics (the Court noted that the examiner was a specialist in internal medicine), and whether the claimed disability manifested by foot pain should be considered an undiagnosed illness that may be presumptively service connected. 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 As noted, this case was remanded on three occasions prior to a decision being rendered on the merits. It has now been returned to the Board by the Court because, despite the three attempts, the VA examinations of record have been found inadequate for rating purposes. Significantly, the Court indicated that the orders for VA examinations found in the prior remands required that the Veteran be examined by a specialist in orthopedics. This was not done. The record includes X-ray evidence of arthritis of the first metacarpophalangeal joints and findings by a VA examiner in March 2010 of a normal foot examination. The March 2010 examiner did not give a likely etiology of the foot muscle and joint pain of which the Veteran complains. Given the nature of the Veteran's complaints, which have not been attributable to any specific disability; and the conflicting medical evidence regarding arthritis of the great toes, the Board can find no basis that the examination, performed by a specialist in internal medicine, is adequate for rating purposes. As such an additional examination should be obtained and the case must, once again, be remanded. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders); Cousino v. Derwinski, 1 Vet. App. 536 (1991) (Where there is a wide diversity of medical opinion, an additional examination should be performed.) Regarding the Veteran's claims of service connection for low back and shoulder disabilities, it is noted that impression from a January 2011 VA examination were right shoulder osteoarthritis, left shoulder tendinitis, and lumbar spondylitis and scoliosis. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should arrange for the Veteran to undergo a medical examination to ascertain the current nature and extent of his bilateral foot disorder. The examiner should be requested to render an opinion regarding whether it is at least as likely as not (probability 50 percent or more) that a bilateral foot disorder is related to service, including as a qualifying chronic disability under 38 C.F.R. § 3.317. If it is determined that it is at least as likely as not that the bilateral foot disorders may be related to service, the examiner should be requested to render opinions regarding whether it is at least as likely as not that a low back disorder is caused or aggravated by a bilateral foot disability. If this is affirmatively answered, a third opinion regarding whether it is at least as likely as not that a low back disability causes or aggravates a shoulder disability should be obtained. The claims folder should be made available for review in connection with this examination. The examiner should provide complete rationale for all conclusions reached. 2. Thereafter, the RO/AMC should readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable law and regulations considered. The Veteran should be given an opportunity to respond to the SSOC prior to returning the case 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). The Veteran 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 (2013). 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). _________________________________________________ F. JUDGE FLOWERS 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).