Citation Nr: 1759978 Decision Date: 12/22/17 Archive Date: 01/02/18 DOCKET NO. 11-23 465 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Budd, Counsel INTRODUCTION The Veteran served on active duty from September 1976 to September 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. This matter was remanded by the Board for a hearing in April 2015, and for additional development in August 2015. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in April 2015. 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 The August 2015 remand instructed the AOJ to obtain a supplemental medical opinion that specifically addresses the Veteran's competent lay testimony of an in-service back injury when attaching a piece of artillery to a truck, and of back pain since service, as well as the argument sent forth by Dr. D.B. that pes planus altered his normal mechanics such that running and jogging in service could have predisposed him to an earlier onset of disc degeneration or facet arthrosis. The requested supplemental opinion was obtained in December 2015. Unfortunately, the clinician appears to have misunderstood the instruction and did not substantially comply with it. See Stegall v. West, 11 Vet. App. 268 (1998). The clinician provided a negative opinion regarding aggravation of pes planus by service rather than addressing the in-service event of running long distances with pes planus and its potential impact on the Veteran's low back. Upon remand, a supplemental opinion should be obtained that addresses the Veteran's theory that his low back disability was caused by running long distances with mechanics altered by pes planus in service, as well as the Veteran's competent report of an in-service back injury and back pain since service. Accordingly, the case is REMANDED for the following action: 1. Forward the claims file to an appropriate VA clinician who has not provided an opinion in this matter before. After reviewing the claims file, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's low back disability is caused by or otherwise related to service. The clinician is to specifically discuss the Veteran's competent lay testimony of an in-service back injury when attaching a piece of artillery to a truck, and of back pain since service. Although the Veteran denied recurrent back pain in his September 1979 report of medical history, he asserts in February 2011 correspondence that he sought treatment from a private chiropractor, Dr. W., in 1979, but that the records have since been destroyed. He has provided records from a second treatment provider that he began seeing in 1992, which indicate that he previously sought treatment from Dr. W.. The clinician must reconcile his/her opinion with an August 2011 VA treatment note that indicates that the pop the Veteran reported feeling when lifting the extremely heavy tongue of an artillery piece in 1976 may represent the endplate herniation that is seen on L4. The clinician is also to specifically address the assertion that the in-service event of running long distances with the altered mechanics associated with pes planus caused his current low back disability. The Veteran is not service-connected for pes planus, and the only effects to be considered are those of running with pes planus while in service. An August 2011 private treatment note opines that the Veteran's back pain is most likely coming from his pes planus, and states that as a result of the pes planus, the Veteran had altered his normal mechanics in service, and as a result has a more chronic back pain setting such that jogging/running for lengthy distances while in service could have predisposed him to an earlier onset of disc degeneration or facet arthrosis. An undated opinion received in August 2011 also states that the Veteran did a lot of running in service without orthotics, and this could have contributed to his back issues. Each opinion offered must be supported by a complete rationale. If the clinician believes that a new examination is necessary to provide the requested opinion, such an examination should be scheduled. 2. After completing the above development, readjudicate the issue on appeal. If the benefit sought remains denied, issue a supplemental statement of the case and return the case 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 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). _________________________________________________ U. R. POWELL 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) (2017).