Citation Nr: 1754411 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 14-08 708 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for disability manifesting in left leg pain. 2. Entitlement to service connection for disability manifesting in right leg pain. 3. Entitlement to service connection for a right knee disability. 4. Entitlement to service connection for a left knee disability. 5. Entitlement to service connection for disability manifesting in pain of the bilateral feet. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Solomon, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1971 to January 1975. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In May 2017, the Veteran presented testimonial evidence at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Further development is needed prior to adjudication of these claims. The Veteran asserts that he suffers from bilateral leg, knee, and foot pain caused by his military service. Specifically, the Veteran contends that injuries to his feet and lower back during service have led to alterations in his gait resulting in disabilities manifesting in knee and leg pain. The United States Court of Appeals for Veterans Claims (the Court) has held that, where VA has notice that a Veteran is receiving disability benefits from the Social Security Administration (SSA), and that records from that agency may be relevant to a claim before VA, VA has a duty to acquire a copy of the decision granting Social Security disability benefits and the supporting medical documents on which the decision was based. Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) (finding that VA must seek to obtain relevant records under 38 U.S.C. § 5103 when 'there exists a reasonable possibility that the records could help the Veteran substantiate his claim for benefits'). In the present case, the record contains a March 2008 decision finding the Veteran to be disabled, due in part to degenerative joint disease of the knees status post arthroscopy on the left. While the decision and a "Notice of Decision," with the SSA Administrative Law Judge's reasoning has been provided by SSA and associated with the claims file, the medical records upon which such decision was based have not yet been obtained. Under the circumstances presented here, the AOJ should take action to ensure the Veteran's complete SSA records are procured and included in the claims file. The Veteran has also not yet been provided with VA examination regarding the present appeals. In the case of McLendon v. Nicholson, the Court, held that an examination is required when there is (1) competent evidence of a current disability or recurrent symptoms, (2) evidence establishing an "in-service event, injury or disease," (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. 20 Vet. App. 79 (2006). VA and private treatment records document the Veteran's reports of right and left foot pain, and include an assessment of bilateral hallux valgus. The Veteran testified that his feet started bothering him in basic training and that he has continued to have chronic foot pain since that time. He described an incident in service where he fell from a climbing rope and landed feet-first, resulting in pain of the feet and legs, in addition to significant back pain. The Veteran's April 1971 service entrance examination includes a notation of "pes planus, asymptomatic, NCD" and April 1974 separation examination notes that the Veteran's left great toe is slightly deviated laterally, with a notation that the big toe is "off angle" from the other toes due to trauma as a child. Given this evidence, an examination must be provided on remand. The Veteran was previously granted service connection for left L5-1 facet degenerative changes with lumbar strain ("low back disability"). With regard to his current claims for service connection for left and right leg disabilities, at the May 2017 Board hearing, the Veteran testified that his chronic low back pain radiates down his legs into the thigh region, bilaterally. He further contends that his low back injury in service and pes planus, which he asserts was aggravated during service, have led to an alteration of gait which has resulted in pain and disability of the legs, knees, and feet. Considering this evidence, on remand, the Veteran should be scheduled for a VA examination for an opinion on the nature and etiology of a disability manifesting in his left and right leg pain. The examination and opinions should specifically include discussion of whether the Veteran's leg pain represents a neurological abnormality associated with his service-connected low back disability. Review of the claims file demonstrates that private treatment records relevant to the Veteran's claim of entitlement to service connection for disability resulting in left and right knee pain remain outstanding. In particular, a July 2008 VA primary care note for a new patient exam indicates that the Veteran's mobility was independent, with recent impairments of the bilateral lower extremities, and that he was status post knee arthroscopy done elsewhere. On remand, the AOJ should contact the Veteran and request that he provide any necessary information and authorization needed to allow VA to request and obtain these private treatment records. As the Board is remanding the case for further development, action should be taken to ensure that updated records of VA treatment are obtained and associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. Obtain any and all of the Veteran's outstanding VA treatment records, including those from October 2013 to the present, and associate them with the claims file. All efforts to obtain such records must be fully documented and VA facilities must provide a negative response if no records are found. 2. Ask the Veteran to identify and provide a release form for any additional records of private treatment relating to his claims, including any records pertaining to his knee arthroscopy. After securing any necessary written authorization from the Veteran, request the private records identified and associate them with the claims file. If any records cannot be obtained after reasonable efforts have been made, notify the appellant of the attempts made and allow him the opportunity to obtain the records. 3. After completing the above and associating all responsive records with the claims file, schedule the Veteran for a VA examination to address the nature and etiology of any left and/or right foot disability present during the appeal period. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The Veteran's claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically note on the report whether such files were reviewed in connection with this examination. After considering the lay and medical evidence of record, the examiner should address the following: a. Provide a diagnosis for any left and/or right foot disability present at any point during the appeal period (September 2008 to present). The examiner is asked to specifically confirm or rule out a diagnosis of pes planus. If a diagnosis of pes planus is found warranted at any time during the relevant appeal period, the examiner should state whether it is at least as likely as not (50 percent probability or greater) that the current pes planus disability represents a continuation of the pes planus noted on the Veteran's April 1971 military entrance examination. b. For any diagnosis identified above, state whether it is at least as likely as not (50 percent or greater probability) that the disorder arose during or was otherwise caused or aggravated by the Veteran's military service. The examiner's attention is directed to the Veteran's April 1974 separation examination which documents that the left great toe was slightly deviated laterally. The examiner is advised that although the separation examiner wrote that the "off-angle" of the left big toe was due to trauma as a child, the evidence does not clearly and unmistakably show that this pre-existed service and was not aggravated by service. Therefore, because pes planus was the only foot abnormality noted on the entrance examination, the Veteran is presumed to have entered service in sound condition as to any other foot disorders. c. The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's bilateral pes planus, noted at entrance into service, increased in severity during active service. In doing so, the examiner should closely consider the Veteran's lay statements that his pes planus was asymptomatic until basic training. If the examiner determines that the Veteran's bilateral pes planus increased in severity during active service, the examiner should further state opinions as to whether it is clear and unmistakable (i.e. undebatable) that: 1) such increase was not permanent (i.e. was a temporary flare up of symptoms returning to a baseline level of disability), and 2) that the increase in disability was due to the normal progression of the disease. If it is debatable whether or not the increase in the pes planus disability during service represented a permanent worsening of the underlying disability beyond the normal progression of the disorder, the examiner should state whether it is at least as likely as not (50 percent or greater probability) that any of the current foot diagnoses provided in response to Part a were caused or aggravated by the Veteran's pes planus. 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 conclusion is so evenly divided that it is as medically sound to find in favor of a conclusion as it is to find against it. The examiner must include in the medical report the rationale for any opinion expressed, along with citation to specific evidence in the claims file and relevant medical treatise evidence as necessary. However, if the examiner cannot respond to an inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. After completing the development requested in Parts 1 and 2 and associating all responsive documents with the claims file, schedule the Veteran for a VA examination with an appropriate medical professional for an opinion on the nature and etiology of the Veteran's reported left and right leg pain. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The Veteran's claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically note on the report whether such files were reviewed in connection with this examination. After considering the lay and medical evidence of record, the examiner should address the following: a. Provide a diagnosis for any disability resulting in left and/or right leg pain at any point during the appeal period (September 2008 to present). As part of this inquiry, the examiner is asked to determine whether it is at least as likely as not (50 percent or greater probability) that the leg pain, described by the Veteran at the Board hearing as involving low back pain radiating down his legs into the thigh region, represents a manifestation of a neurological disorder associated with the Veteran's service-connected L5-1 facet degenerative changes with lumbar strain. b. For any current diagnosis identified in response to Part a, is it at least as likely as not (50 percent or greater probability) that the disorder arose during or is otherwise causally related to the Veteran's active military service? 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 conclusion is so evenly divided that it is as medically sound to find in favor of a conclusion as it is to find against it. The examiner must include in the medical report the rationale for any opinion expressed, along with citation to specific evidence in the claims file and relevant medical treatise evidence as necessary. However, if the examiner cannot respond to an inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 5. Thereafter, review the requested medical opinion reports to ensure responsiveness to and compliance with the directives of this remand; implement corrective procedures as needed. 6. Thereafter, complete any further development deemed necessary in light of the expanded record (to include providing the Veteran with a VA knee examination, if warranted), then readjudicate the Veteran's claims of entitlement to service connection for disabilities manifesting in left and right leg pain, left and right knee pain, and bilateral foot pain. If the benefits sought on appeal are not granted in full, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The appellant 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. §§ 5109B, 7112 (2012). _________________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).