Citation Nr: 1343527 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 08-30 216A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Medical Center and Regional Office (RO) in Fargo, North Dakota THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for a bilateral leg condition. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD H. Seesel, Counsel INTRODUCTION The Veteran served on active duty from July 1967 to April 1970. These matters initially came to the Board of Veterans' Appeals (Board) on appeal from a rating decision by the RO in August 2007. The Board previously considered this appeal in September 2012. At that time, the Board denied claims of service connection for hearing loss and tinnitus and remanded claims of service connection for the left foot and ankle, shoulder, back, and leg disorders. In a March 2013 rating decision, the AMC granted service connection for congenital navicular deformity, second degree pes planus and degenerative changes of the left foot and tendinitis and tenosynovitis of the left ankle. This action constituted a full grant of the benefits sought, and the claims of service connection for left foot and ankle disabilities are no longer pending appellate review. The Board again considered the appeal concerning the remaining issues in an August 2013 decision. At that time, the Board denied service connection for a shoulder disorder and remanded the claims of service connection for the left leg and back disorders for further development. A review of the record reflects that the Board mistakenly limited the claim to the left leg in the August 2013 decision. The Veteran's initial claim was for "leg disorders" and the August 2007 rating decision and September 2008 Statement of the Case and the September 2012 Board decision considered a leg disorder and did not limit the issue to only one side. Hence, the Board has again recharacterized the issue to reflect consideration of any leg disorder. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. This appeal is being remanded to the RO. VA will notify the Veteran if further action is required on his part. REMAND A preliminary review of the record reflects that further development is necessary. The record reflects that the Veteran has received care at private facilities, and there may be outstanding treatment records. During the November 2012 VA examination, the Veteran indicated that, although he had never visited a physician in regard to his back problems, he might have mentioned it on his annual routine visit. VA outpatient treatment records included a May 2007 record that noted the Veteran receives care at Henning Medical Clinic and Ottertail Area Medical Clinic. While some records were obtained from Henning Medical Clinic in 2007, the record reflects that the Veteran continued to seek treatment at that facility. Specifically, subsequent VA treatment records reflect that some documents from Henning Medical Clinic and other private facilities were scanned into VISTA. For example, a June 2012 reflect records from Tri-County Health were scanned into VISTA and records in January 2010 and May 2010 reflect that records from Henning Medical Clinic were received and scanned into VISTA. The Board, however, does not have access to VISTA and is not able to view these documents. On remand, these private medical records and copies of the records scanned into VISTA should be obtained. Additionally, concerning the claimed low back condition, the August 2013 Board remand explained that an addendum was required as the examiner based the opinion on the Veteran's lack of aggravation of a pre-existing back condition and the Board clarified that the Veteran did not claim to have a pre-existing back disorder. A review of the September 2013 VA examination reflects that the examiner again confused the standard and continued to complete the portions for an opinion "for aggravation of a condition that existed prior to service" for both the low back and the leg disabilities. As the examiner has evaluated the claim under a higher standard than the one that applies, another examination is required. Concerning the claimed leg condition, the September 2013 VA examination concluded that "with no active recognized conditions seen today it appear[ed] very unlikely, and far less than 50% probable that any leg condition (which [were] not actually found) [was] related to a service event by aggravation." In the same report, however, the examiner clearly noted that x-ray studies confirmed mild left knee degenerative joint disease. The examiner's rationale was based on the lack of any active recognized condition; however, by the examiner's own report, the Veteran had a current diagnosis of mild left knee degenerative joint disease. As such, another clarifying opinion is necessary. Accordingly, the case is REMANDED for the following action: 1. The RO should take all indicated action to contact the Veteran in order to have him identify all sources of treatment received for his claimed disabilities and to provide any releases necessary for VA to secure records of such treatment or evaluation. The RO then should undertake to obtain copies of the complete records of all such treatment and evaluation from all identified sources. The RO should specifically request records from Henning Medical Clinic and Ottertail Area Medical Clinic. The updated treatment records from the VA Health Care System from May 2013 until the present should be requested and associated with the claims file. Any records scanned into VISTA at any time, should be separately loaded onto Virtual VA and/or VBMS so that the Board may review these documents. If any requested records are not available, that fact must clearly be documented in the claims file and proper notification under 38 C.F.R. § 3.159(e) should be provided to the Veteran. 2. After any records requested above have been received, the RO should have the Veteran scheduled for a VA examination to assess the nature and likely etiology of the claimed leg disorder. The claims file and a copy of this Remand must be made available to the examiner, and the examiner should indicate in the report that the claims file was reviewed. All tests that are deemed necessary by the examiner should be conducted. Following a review of the file, the examiner should comment upon the following: a) whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that the Veteran has a current leg disability, to include the documented mild left knee degenerative joint disease, that had its clinical onset during service or otherwise was related to a documented event or incident of that period of active service. b) whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that the Veteran has a current leg disability, to include the documented mild left knee degenerative joint disease, that was caused or aggravated by the service connected congenital navicular deformity, second degree pes planus and degenerative changes of the left foot and tendinitis and tenosynovitis of the left ankle. The examiner should specifically comment upon the reports of an altered gait from these service-connected disabilities. If a DBQ form is used, opinion 4 "Medical opinion for secondary service connection" and opinion 6 "Medical opinion for aggravation of a nonservice-connected condition by a service-connected condition" should be completed. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. After any records requested above have been received, the RO should forward the Veteran's claims file to an appropriate VA examiner to assess the nature and likely etiology of the claimed low back condition. The claims file and a copy of this Remand must be made available to the examiner, and the examiner should indicate in the report that the claims file was reviewed. If the examiner feels another clinical examination is necessary, one should be undertaken. Following a review of the file, the examiner should comment upon the following: whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that the Veteran has a current low back disability that was caused or aggravated by the service-connected congenital navicular deformity, second degree pes planus and degenerative changes of the left foot and tendinitis and tenosynovitis of the left ankle. The examiner should specifically comment upon the reports of an altered gait from these service-connected disabilities. If a DBQ form is used, opinion 4 "Medical opinion for secondary service connection" and opinion 6 "Medical opinion for aggravation of a nonservice-connected condition by a service-connected condition" should be completed. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. After completing all indicated development, the RO should readjudicate the claims remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran 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). _________________________________________________ STEPHEN L. WILKINS 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).