Citation Nr: 1507840 Decision Date: 02/24/15 Archive Date: 02/26/15 DOCKET NO. 10-22 421 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for varicose veins. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran had active service from March 1981 to March 1986. This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Veteran was afforded a hearing before a Decision Review Officer (DRO) in October 2010. A transcript of the testimony offered at the hearing has been associated with the record. Prior to transfer of this appeal to the Board, the Veteran withdrew his appeal with respect to his claim for service connection for scars of the shins, legs and arms. Thus, it is not before the Board at this time. See 38 C.F.R. § 20.204 (b)(3) (2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran seeks service connection for a disability of the spine, which he relates to a history of fall, as well as other events, in service. His service treatment records document a history of a fall down the stairs in October 1982, with an assessment of a low back contusion. Service connection has been established for generalized joint pain diagnosed as arthralgia, calcaneal Achilles and plantar enthesopathy, right ankle. The Veteran also seeks to substantiate the claim for service connection of a back disability as secondary to this condition, i.e. limping and altered gait caused thereby. See February 2, 2015, Written Brief Presentation. In furtherance of substantiating his claim, the Veteran was afforded a VA examination in February 2009. The examination resulted in an impression of lumbago/mild compression of T-11 vertebra. At the time of the examination, the Veteran related a history of injury to the low back when he was "blown down by a jet in 1982," although the examiner did note the reference to a fall down the stairs noted in the service records. In terms of etiology, the examiner remarked that she could not "resolve this issue without resort to mere speculation." She explained that based upon a review of the claims file, it appeared that the Veteran hit his hip/back in service, but that the claims file did not show any follow-up treatment or reported pain to the hip/back after the 1982 fall. Despite her indication that she could not offer any opinion without resort to speculation, she opined that the disability "most likely is caused from several factors to include aging, weight, previous injury and his current profession" and remarked that the cause of the back condition was "most likely multifactorial." The examiner did not address whether the disability is secondary to the service-connected disorder and therefore another examination is warranted. The Veteran has not been afforded a VA examination to address his claim of entitlement to service connection of varicose veins. A review of the service treatment records does not disclose any complaints or assessments regarding varicose veins, although they do document that the Veteran had problems with obesity in service. A January 1999 private medical record from D.M.J., M.D. marks the apparent first assessment of varicose veins and notes that the Veteran's sole risk factor was obesity. This, along with the notations of weight problems and obesity in service, suggests that the Veteran's varicose veins may be attributable to service. Accordingly, a VA examination is warranted. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Lastly, the Board notes that in September 2009 the RO attempted to obtain records from Dr. Jacob, but received a negative reply to its request in October 2009. Although several letters from Dr. Jacob dated in January 1999, February 1999, September 2000 were included in the submission from another clinician, the Veteran reported that he was also seen by Dr. Jacob in 2001. Upon remand, these negative search results should be communicated to the Veteran pursuant to 38 C.F.R. § 3.159(e). He should also be advised that he may also submit these records. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with notice of how to substantiate a claim under the theory of secondary service connection. 2. Provide the Veteran notice of the negative search results for records from Dr. Jacob pursuant to 38 C.F.R. § 3.159(e). See the October 2009 response indicating "no records found regarding this patient [and] date of birth." 3. After the development directed in paragraphs 1 and 2 has been completed to the extent possible, schedule the Veteran for a VA examination for the purpose of ascertaining the presence, nature and likely etiology of any diagnosed disability of the back. The examiner should review the claims file in conjunction with the examination, giving particular attention to the service treatment records, lay assertions, and the pertinent medical evidence. Of particular note, attention is invited to the history of falling down the stairs in service in 1982 and the history of motor vehicle accident post-service in 1987. The examination report should note that the claims file was reviewed. Based upon the examination and a review of the record, the examiner should address the following questions: a) Is it at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran has a back disability that began during service or is related to service, to include as a result of injury therein? b) Is it at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran's service-connected generalized joint pain diagnosed as arthralgia, calcaneal Achilles and plantar enthesopathy, right ankle, caused a back disability to include by means of an altered gait, limp, abnormality of movement or balance problems? c) If it is determined that any assessed disability of the low back was not caused by service-connected generalized joint pain diagnosed as arthralgia, calcaneal Achilles and plantar enthesopathy, right ankle, the examiner should opine whether it is at least as likely as not that any back disability has been aggravated (that is, worsened beyond the natural progress) by the service-connected generalized joint pain diagnosed as arthralgia, calcaneal Achilles and plantar enthesopathy, right ankle, beyond natural progression, to include by means of an altered gait, limp, abnormality of movement or balance problems. With respect to questions "b)" and "c)" the examiner's attention is directed to the literature referenced in the appellant's February 2, 2015, Written Brief Presentation on VBMS. Any and all opinions must be accompanied by a complete rationale. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. The examiner is informed that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. 4. Schedule the Veteran for a VA examination for the purpose of ascertaining the presence, nature and likely etiology of any diagnosed varicose veins. The examiner should review the claims file in conjunction with the examination, giving particular attention to the service treatment records, lay assertions, and the pertinent medical evidence. The examination report should note that the claims file was reviewed. Based upon the examination and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any varicose veins are related to service. Of particular note, attention is invited to the Veteran's history of weight problems in service, as well as the 1999 indication of varicose veins due to obesity. Any and all opinions must be accompanied by a complete rationale. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. The examiner is informed that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. 5. After the development requested above has been completed to the extent possible, review the record and readjudicate the Veteran's claims. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto before this case is returned to the Board. 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). 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 2014). _________________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).