Citation Nr: 1341083 Decision Date: 12/12/13 Archive Date: 12/20/13 DOCKET NO. 09-29 538 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a foot disorder, to include flat feet. 2. Entitlement to service connection for a disorder manifested by bilateral leg pain. REPRESENTATION Appellant represented by: Maxwell D. Kinman, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The Veteran served on active duty from August 1972 to July 1974. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center (IC) in Philadelphia, Pennsylvania. In a November 2011 decision, the Board denied the claim for service connection for a disorder manifested by bilateral leg pain and remanded the claim for service connection for flat feet. Following additional development, the claim for service connection for flat feet returns to the Board. Following the November 2011 denial of the claim for service connection for a leg disorder manifested by pain, the Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In May 2013, the Court issued a Memorandum Decision which directed that the claim for service connection for a bilateral leg disorder manifested by pain be readjudicated after additional development is conducted. The claim for service connection for a bilateral leg disorder manifested by pain returns to the Board from the Court following issuance of the Court's decision. The Veteran testified at a videoconference hearing in August 2010 before the undersigned Acting Veterans Law Judge. A transcript of the hearing is of record. In August 2013, the Veteran submitted a motion requesting a change in his representation. That motion was granted in November 2013. The Veteran has appointed the representative listed on the title page of this decision. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action on his part is required. REMAND The Veteran has indicated that he was hospitalized at Fort Dix, New Jersey, while in basic training. An August 16, 1972 notation in the service treatment records associated with the claims files reflects that the Veteran was "DISCHARGED TO DUTY" from WAH (Walson Army Hospital), Fort Dix, New Jersey, with a diagnosis of "URI" (upper respiratory tract infection). The Appeals Management Center declined to attempt to obtain those records, since the Veteran was treated for a respiratory disorder rather than a disorder for which service connection is sought in this appeal. It is the Board's opinion, however, that an attempt to obtain these records should be made. Additionally, the Board notes that the service treatment records disclose that the Veteran was referred to the "brace shop" in August 1972 when he began to complain of leg pain. Records from the "brace shop," to include any separately-filed orthopedics or prosthetics clinic records, should be sought. The Court has directed that treatment records identified as relevant to the claim for service connection for flat feet be obtained and considered with respect to the claim for service connection for a disorder manifested by bilateral leg pain. The Court decision directs that the Veteran be afforded VA examination after all potentially-relevant records are associated with the claims file. As the Court stated that records relevant to the claim for service connection for a foot disorder are relevant to the claim for service connection for a disorder manifested by bilateral leg pain, it follows that, after all development as to both claims has been conducted and medical opinion regarding the claim for service connection for a disorder manifested by bilateral leg pain is obtained, an updated medical opinion as to the claim for service connection for a foot disorder is also required to assure that any additional evidence relevant to that claim obtained since the pertinent October 2012 VA foot examination has been addressed. With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. Feb. 21, 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.303(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). A grant of service connection under 38 C.F.R. § 3.303(b) does not require proof of the nexus element; it is presumed. Id. A medical opinion should be obtained to address the Veteran's contention that he currently has a chronic leg disorder manifested by pain, and the medical opinion must address the Veteran's lay statement as to chronicity and continuity of symptoms of leg pain since service. Accordingly, the case is REMANDED for the following action: 1. Ask the National Personnel Records Center (NPRC) or Records Management Center, as appropriate, to search again for service treatment records for the Veteran, to include separately-filed inpatient records of treatment at WAH (Walson Army Hospital), Fort Dix, New Jersey, for hospitalization in August 1972, and separately-filed records of the hospital or outpatient orthopedic and/or prosthetics clinical or department. 2. The Veteran should be afforded the opportunity to submit or identify any records, clinical or non-clinical, to include employment records, which support his lay statements about leg pain or a leg disorder following service. 3. Ask the Veteran if he has obtained VA treatment since the October 2012 VA examination. If he has, obtain the records. 4. Afford the Veteran VA examination of the legs. The claims folder and a copy of this Remand should be made available to the examiner for review in connection with the examination. The examiner must indicate that pertinent documents in the claims folders, including service medical records, including records dated in August 1972 reflecting complaints of leg pain, and notations such as the July 2012 notation by Foot & Ankle Health Group that the Veteran has "foot type pes planus," and the report of VA examination conducted in October 2012 reflecting normal arch height with full weight-bearing and normal radiologic examination of the feet, were reviewed. The examiner should then answer the following questions: (i). What diagnoses should be assigned for the Veteran's current complaints of "leg pain"? (ii). Is it at least as likely as not (50 percent, or greater, probability) that the Veteran incurred a current disorder manifested as leg pain in service? (iii). Is it at least as likely as not (50 percent, or greater, probability) that the Veteran had a pre-existing disorder which was aggravated, that is, permanently increased beyond the natural progression of the disorder in service, and that the aggravation incurred in service results in current leg pain? The examiner must acknowledge and discuss the Veteran's lay statements. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 5. The clinical who conducts VA examination of the Veteran's legs should provide an updated opinion as to the likelihood that the Veteran has a current foot disorder, to include flat feet, which was incurred in service or aggravated, that is, permanently increased beyond the natural progression of the disorder, in service. The examiner must indicate that pertinent documents in the claims folders, including service medical records, including records dated in August 1972 reflecting complaints of leg pain, and notations such as the July 2012 notation by Foot & Ankle Health Group that the Veteran has "foot type pes planus," and the report of VA examination conducted in October 2012, were reviewed. In answering each question, the examiner must comment on the Veteran's lay statements as to onset of the symptoms attributed to the claimed disorder, diagnosed or undiagnosed. The examiner(s) must explain the rationale for all opinions given. If any requested opinion cannot be provided without resort to pure speculation, the examiner should explain why the opinion cannot be provided and identify information that might assist to provide a basis for a non-speculative opinion. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against causation. 6. The RO should again advise the Veteran that failure to report to any scheduled examination(s), without good cause, may result in an adverse decision. 38 C.F.R. § 3.655 (2013). The Veteran should be advised that he should promptly inform the RO if rescheduling of an examination is needed. The Veteran should also be advised that he should promptly inform the RO of address changes or changes in his telephone number. 7. The directions set forth in this Remand and the claims folder should be carefully reviewed to ensure that the foregoing requested development has been completed. Then, the claims on appeal should be readjudicated and the claimant should be notified of that adjudication. If any benefit requested on appeal is not granted to the claimant's satisfaction, the claimant and his representative should be furnished a supplemental statement of the case which addresses all of the evidence obtained. The claimant should be afforded an opportunity to respond. By this remand, the Board intimates no opinion as to any final outcome warranted. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. See 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 or by the Court 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). _________________________________________________ K. R. FLETCHER 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) (2013).