Citation Nr: 1340476 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 03-28 828A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a back disability, including arthritis and degenerative disc disease. REPRESENTATION Appellant represented by: Jewish War Veterans of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran served on active duty from February 1977 to February 1980, with additional service in the Army Reserves and Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 decision by the Roanoke, Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the Veteran's application to reopen a previously denied claim of entitlement to service connection for a back disability. A hearing on this matter was held before the undersigned Veterans Law Judge on March 17, 2008. A copy of the hearing transcript has been associated with the file. In July 2008, the Board reopened and remanded the claim of entitlement to service connection for a back disability. In February and November 2011, August 2012, and June 2013, the Board remanded for further evidentiary development. REMAND In April 2013, the Veteran submitted correspondence from Neurologic Associates dated in March 2013 and signed by M. A. Landrio, M.D. This information included a medical opinion of a possible relationship between the Veteran's current degenerative disease/arthritis and his in-service activities as a paratrooper. While a supplemental statement of the case was issued in August 2013, it does not appear that this evidence was considered. The Board observes that any pertinent evidence submitted by the appellant or his/her representative before the record is sent to the Board must be addressed by the agency of original jurisdiction (AOJ). 38 C.F.R. § 19.37 (2013); see also Disabled American Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003) (holding that appellants are denied "one review on appeal to the Secretary" when the Board considers additional evidence without having to remand the case to the AOJ for initial consideration). This evidence was first received at the RO, but was forwarded to the Appeals Management Center (AMC) and was received before the August 2013 supplemental statement of the case was issued. Consequently, the case must be returned to the AOJ for consideration of this evidence. 38 C.F.R. § 19.37. (The March 2013 correspondence from Neurologic Associates reflects that the Veteran was last seen in March 2013.) Additionally, in April 2013 correspondence, the Veteran indicated that he had additional back-related private treatment records he was attempting to obtain and submit to VA. He thereafter submitted a stack of documents (approximately 1 inch high) to the AMC in August 2013 that also appears to have been received at the AMC before the case was forwarded to the Board. The documents were finally received by the Board on November 22, 2013. Included in the records submitted by the Veteran was a March 2013 statement by B. R. Subach, M.D., who indicated a possible relationship between back disability and the Veteran's in-service paratrooper activities, and a July 2013 statement from L. S. Wilson, Jr., M.D., who indicated that the Veteran's altered gait made his back pain worse. Therefore, given that the case is being returned for further consideration by the AOJ, treatment records dated since December 2012 that have not been associated with the Veteran's claims file or Virtual VA eFolder should be obtained, including any from these treatment providers. 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992). When the Board remanded this case in February 2011, the Board specifically requested a medical opinion, to include whether a current back disability was caused or made chronically worse by the Veteran's service-connected disabilities, particularly his bilateral pes planus with metatarsalgia and right and left tarsal tunnel syndrome. The examiner was to address the significance of any altered gait. However, a February 2011 examiner failed to comment on whether a spine disability was caused or made chronically worse by a service-connected disability and did not address the significance of an altered gait. Hence, the case was remanded again in November 2011. In December 2011, based on findings that there were no current back disabilities, the VA physician found that the claimed condition was less likely than not proximately due to or the result of the Veteran's service. However, as the claims file clearly demonstrated that the Veteran did, in fact, have a diagnosed back disability, and the physician did not address the issue of secondary service connection or the impact of the Veteran's altered gait, the claim was remanded again in August 2012. In an October 2012 opinion, a VA physician did not provide an opinion as to whether the current back disability was chronically made worse by a service-connected disability and failed to address the impact of the Veteran's altered gait on the development and progression of any spine disability. As a result, the claim was remanded again in June 2013. In a June 2013 opinion, a different VA examiner stated that the Veteran's spine conditions were not made worse by service-connected bilateral pes planus with metatarsalgia and bilateral tarsal tunnel syndrome, and that there was no evidence to support a worsening of the lumbar spine conditions related to any foot conditions, but the examiner nevertheless failed to address the impact of the Veteran's gait on the development and progression of any spine disability. As the issue of the impact of an altered gait on the development and progression of any spine disability has been repeatedly requested to be addressed and because this matter still has not been directly addressed in the VA opinions, another VA opinion will be requested. It is also important to have an examiner conduct a thorough review of the record, including the newly received evidence and opinions. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all records of the Veteran's treatment for back disability since June 2013 from the Martinsburg VA Medical Center and from any other sufficiently identified VA facility. If any such records are unavailable, the Veteran should be notified of the identity of any records that are unavailable, the efforts VA has undertaken to obtain the records and any further action that may be taken concerning his claims, and he should be notified that he may submit the records himself. All such notification must be documented in the claims file. 2. Request that the Veteran identify any medical treatment records for a back disability and furnish appropriate authorization for the release of private medical records, to include treatment records from Neurologic Associates, PLC, Virginia Spine Institute, and Arthritis & Sports Orthopaedics and Physical Therapy. If the Veteran fails to furnish any necessary releases for private treatment records, he should be advised to obtain the records and submit them to VA. 38 C.F.R. § 3.159 (2013). Any negative search response must be noted in the record and communicated to the Veteran. 3. Arrange for the Veteran's claims file, including any relevant records in Virtual VA, and a copy of this remand to be reviewed by an orthopedist with qualifications and/or expertise in spine disabilities. The examiner(s) should, after review of the entire record: a. Identify any and all disorders of the thoracolumbar and cervical spine. b. Provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any of the diagnosed thoracolumbar or cervical spine disorder had its onset in service or within the first post-service year or is otherwise related to any period of service, to include landing wrong on multiple parachute jumps as well as the 1978 parachute jump injury and/or documented complaints of pain in the area of the lumbar puncture in November 1977. Consideration should be given to the extensive history as provided at a May 1980 examination and comments made in a December 1980 neurological consultation, as well as the remaining record, including opinions provided by Drs. Subach and Landrio regarding the effect of paratrooper activities on the Veteran's back. c. If not directly related to service, the examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that a diagnosed lumbosacral or cervical spine disorder was either caused or made chronically worse by service-connected bilateral pes planus with metatarsalgia and bilateral tarsal tunnel syndrome, including any altered gait as a result thereof. The examiner must comment on the May 1980 VA examination report that noted a history of a bad back and on a December 1980 VA treatment record showing that the Veteran had complaints of episodes of numbness in the legs and an abnormal walking pattern as a result of more than one bad landing from parachute jumps. The impact of the Veteran's altered gait on the development and progression of any spine disability must be addressed. Consideration should include the entire record, including specifically Dr. Wilson's opinion regarding worsening of back pain due to an altered gait. The examiner must provide reasons for each opinion. The medical reasons for accepting or rejecting the Veteran's and his wife's statements regarding onset of disability during service and continuity of problems since should be set forth in detail. Likewise, any difference of opinion with the opinions provided by Drs. Landrio, Subach, and Wilson should be explained in detail. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. (If the examiner concludes that an examination is required to provide the required opinions, another examination should be scheduled.) 4. The agency of original jurisdiction should ensure that all requested actions have been accomplished in compliance with this remand. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be taken. Stegall v. West, 11 Vet. App. 268 (1998). 5. After undertaking any other development deemed appropriate, the AOJ should review the record, to include all evidence in the both physical and Virtual claims file that has not previously been addressed in the most recent supplemental statements of the case, and readjudicate the issue of entitlement to service connection for a back disability, including arthritis and degenerative disc disease. Consideration should include the medical information received in April 2013 and thereafter. If any benefit sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2013). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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) (3).