Citation Nr: 1338335 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 02-11 178 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Whether new and material evidence has been submitted to reopen a previously denied claim for service connection for a skin disorder of the feet. 2. Entitlement to service connection for a low back disorder. 3. Entitlement to service connection for a bilateral foot condition as secondary to low back disorder. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty from October 1969 to May 1972. This case is before the Board of Veterans' Appeals (Board) pursuant to a Memorandum Decision of the U.S. Court of Appeals for Veterans Claims dated in October 2010. That decision, pursuant to an Order of the U.S. Court of Appeals for the Federal Circuit dated in April 2010, vacated an August 2006 Board decision as to the issue of whether new and material evidence had been presented to reopen a claim of entitlement to service connection for a skin disability of the feet. The matter original comes from the appeal of an October 2001 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, which found no new and material evidence to reopen an October 1972 rating decision denying service connection for a skin condition of the feet. In being consistent with orders directed by the U.S. Court of Appeals for the Federal Circuit and the U.S. Court of Appeals for Veterans Claims, the Board, in a February 2012 remand, referred the issues for entitlement to service connection for a back disorder and a bilateral foot disorder as secondary to the claimed back disorder to Agency of Original Jurisdiction (AOJ) to adjudicate them in the first instance. The Veteran's petition to reopen his previously denied claim for service connection for a skin condition of the feet was considered intertwined with the service connection issues and remanded pending additional development and adjudication of those claims. In August 2012, the RO denied the claims for entitlement to service connection for a back disorder and a bilateral foot disorder as secondary to the claimed back disorder. The Veteran has perfected an appeal as to these matters. The claim was most recently remanded in March 2013 and has since been returned to the Board for review. The Veteran and his spouse testified before the undersigned Acting Veterans Law Judge in April 2003. A transcript of the hearing is associated with the claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Unfortunately, the Board finds that further evidentiary development is necessary regarding the Veteran's service-connection claims for a low back disability and bilateral foot disability, as well as his claim to reopen service connection for a skin disability of the feet. In the March 2013 remand, the Board specifically requested that records from the military medical facility at Leighton Barracks in Wurzburg, Germany, dated from 1970 to 1971 be obtained and associated with the claims folders. As pointed out by the Veteran's representative in the October 2013 brief, the RO/AMC only requested records dated between January 1970 and December 1970. The representative indicated that Veteran had claimed that he received treatment for low back complaints with radiation into the lower extremities in the summer of 1971. Moreover, some records dated in 1970 were received, but showed no back complaints. The representative argued that this evidence shows that records at the Leighton Barracks medical facility exist and the 1971 records may still be outstanding. The representative argued that the RO/AMC failed to fulfill the requirements of the Board's March 2013 remand directive because records dated in 1971 were not requested. The Board agrees. The Board is obligated by law to ensure that the Agency of Original Jurisdiction (AOJ) complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). As such, the claims should be remanded again to attempt to obtain any outstanding treatment records from the military medical facility at Leighton Barracks in Wurzburg, Germany, to include records dated in 1971. Additionally, although the RO/AMC made adequate attempts to retrieve outstanding Social Security Administration (SSA) records, the Veteran has specifically identified a location and address wherein his SSA records may be found. Attempts to retrieve these records from the Baton Rouge SSA District Office should be made. Finally, the Veteran's representative argued that the most recent VA treatment records uploaded to the Veteran's electronic file were dated no later than April 2013. The Veteran continues to undergo treatment at the VAMC and outpatient clinic and requests that any outstanding VA treatment records be associated with the claims folders. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Request outstanding service treatment records from the military medical facility at Leighton Barracks, in Wurzburg, Germany, dated in 1971, from the appropriate sources, to include the identified medical facility directly and/or National Personnel Records Center, to ensure that all service treatment records are associated with the claims file. All reasonable attempts should be made to obtain such records. 2. Obtain a copy of the Veteran's SSA disability determination and the records upon which the determination was based. SSA records not duplicative of those already in the claims files should be associated with the record. The RO/AMC should specifically attempt to retrieve these records from the SSA District Office in Baton Rouge as identified by the Veteran in an August 2013 letter to VA. 3. Obtain any outstanding VAMC and VA outpatient treatment records dated from April 2013 to the present. 4. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 5. Only if any new records are obtained, arrange for the Veteran's claims folder to be reviewed by the VA examiner who conducted the April 2012 VA spine examination (or a suitable substitute) for addendum medical opinion on whether the Veteran's pre-existing low back disorder was aggravated by his period of service. Another examination is not required; however, if the VA examiner indicates that he or she cannot respond to the Board's question without examination of the Veteran, such should be afforded the Veteran. The relevant documents in the claims folder should be made available for review in connection with this request. The examiner is asked to offer an opinion regarding the following: (A) Is there any evidence to suggest that a pre-existing low back disorder underwent an increase in the underlying pathology during service, i.e., was aggravated during service? If so, what is the evidence to support a finding that it was aggravated? (B) If there was an increase in severity of the back disorder during service, was that increase due to the natural progress of the disease, or was it above and beyond the natural progression? (C) If, the examiner determines the diagnosed back disorder of lumbosacral strain was not aggravated beyond the natural progression but there are additional back disorders present, then an opinion is needed as to the likelihood (very likely, as likely as not, or unlikely) any diagnosed back disorder had its onset during his service or is otherwise etiologically related to his service. The examiner should provide a rationale for his or her opinion with reference to the evidence of record and should provide a discussion of the facts and medical principles involved. In doing so, the examiner should consider the Veteran's lay statements about seeking treatment for back problems in service and experiencing back problems since service. 6. Only if new records are obtained and associated with the claims folders, then arrange for the Veteran to be afforded a VA neurologic examination to determine whether his claimed bilateral foot disorder is secondary to his low back pathology. The claims file and a copy of this remand must be provided to the examiner and he or she must indicate review of these items in the examination report. The examiner should identify any diagnosed bilateral foot disorder and opine whether it is at least as likely as not (50 percent or more probability) that the bilateral foot disorder, if any, had onset during service or was caused or aggravated by his low back disorder. The term "aggravated" refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology that resolve with return to the baseline level of disability. The examiner should provide a rationale for his or her opinion with reference to the evidence of record and should provide a discussion of the facts and medical principles involved. 7. Then, readjudicate the Veteran's claims on appeal, with application of all appropriate laws and regulations, and consideration of any additional information obtained as a result of this remand. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC). Allow an appropriate period of time for response. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is otherwise notified but he 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). _________________________________________________ NANCY RIPPEL Acting 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).