Citation Nr: 1803240 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 13-27 525 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for a disability of the right lower extremity/foot, to include peripheral neuropathy and radiculopathy, to include as secondary to a back disability. 3. Entitlement to an initial disability rating in excess of 10 percent for status post hammer toe surgery with residuals of metatarsalgia (claimed as left foot/toe condition). 4. Entitlement to an effective date prior to February 9, 2011 for the grant of entitlement to service connection for status post hammer toe surgery with residuals of metatarsalgia (claimed as left foot/toe condition). WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Delhauer, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1978 to July 1982, and with the National Guard from June 1983 to June 1984. These matters come before the Board of Veterans' Appeals (Board) on appeal from August 2010, January 2012, and October 2013 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A copy of the transcript is associated with the evidentiary record. In the January 2012 rating decision, the RO denied the Veteran's claim of service connection for peripheral neuropathy of the right lower extremity. In a May 2011 independent medical examination, the physician discussed both radiculopathy and peripheral neuropathy of the right lower extremity. During the November 2017 hearing before the Board, the Veteran indicated his right foot is affected. Accordingly, the Board has characterized the issue as entitlement to service connection for a disability of the right lower extremity/foot, to include peripheral neuropathy and radiculopathy, to afford the Veteran a broader scope of review. See Browkowski v. Shinseki, 23 Vet. App. 79 (2009) (the veteran may satisfy the requirement to identify the benefit sought by referring to a body part or system that is disabled or by describing symptoms of the disability); see also Clemons v. Shinseki, 23 Vet. App. 1 (2009) (regarding the scope of a claim). The issue of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities has been raised by the record in an August 2011 statement from the Veteran's former representative, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). See also November 2013 VCAA notice letter; November 2013 deferred rating decision. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND During the November 2017 hearing before the Board, the Veteran testified he began receiving treatment for his back as soon as he separated from active duty service at a private hospital in Miami at which he worked. The Veteran also testified he received private treatment for his back from a physician at the same practice where his current primary care physician had previously worked. On remand, the AOJ should ask the Veteran to identify all private treatment for his back and right leg and/or foot since his separation from active duty service, and then undertake appropriate development to obtain any outstanding private treatment records. The medical evidence of record contains current diagnoses of back and right lower extremity disabilities, and indicates the disability of the right lower extremity is related to the Veteran's back disability. See May 2011 Dr. A.M.S. independent medical examination report. It appears the majority of Veteran's service treatment records are unavailable. See December 2017 Veteran statement; July 2010 Formal Finding of Unavailability. The Veteran contends he first experienced back pain during active duty service related to constant walking/marching while carrying heavy loads as part of his duties as an infantryman, that he received treatment for his back during service, and that he has experienced back pain ever since his active duty service. See, e.g., November 2017 videoconference hearing testimony; May 2011 Dr. A.M.S. independent medical examination report. The Veteran's DD Form 214 confirms he served as an infantryman during active duty service. Following a May 2011 independent medical examination, Dr. A.M.S. opined, "[B]ased on the [V]eteran's history and private medical records, I can speculate that his chronic lower back pain and degenerative disc disease is a[t] least as likely as not related to his military service...." He further opined that he could speculate the Veteran's right lower extremity radiculopathy is at least as likely as not secondary to his back disability. The Board places little weight of probative value on opinions which are speculative in nature. See Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996) (medical opinions which are speculative, general or inconclusive in nature cannot support a claim). VA is obliged to provide an examination when the record contains (1) competent evidence of a current disability (or persistent or recurrent symptoms of a disability), (2) evidence establishing that an event, injury, or disease occurred in service, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service, but (4) there is insufficient competent medical evidence on file to decide the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Accordingly, on remand the AOJ should afford the Veteran a VA examination to determine the nature and etiology of his current back and right lower extremity/foot disabilities. Finally, in an October 2013 rating decision, the RO granted entitlement to service connection for status post hammer toe surgery with residuals of metatarsalgia (claimed as left foot/toe condition), rated as 10 percent disabling, effective February 9, 2011. In November 2013, the Veteran's former representative submitted a notice of disagreement with all issues decided in the October 2013 rating decision. However, it does not appear that the AOJ has provided the Veteran with a statement of the case in response to the timely notice of disagreement. Because the notice of disagreement placed the issues in appellate status, the matters of entitlement to an increased initial disability rating and entitlement to an earlier effective date for the grant of service connection for status post hammer toe surgery with residuals of metatarsalgia must be remanded for the originating agency to issue a statement of the case. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Accordingly, the case is REMANDED for the following action: 1. The AOJ should ask the Veteran to identify all private treatment related to his back and/or right leg/foot since his separation from active duty service. The AOJ should undertake appropriate development to obtain any outstanding treatment records, to include from the private hospital at which the Veteran worked and received treatment after his separation from active duty, and from the practice at which he received treatment from another physician prior to his current primary care physician. The Veteran's assistance should be requested as needed. All obtained records should be associated with the evidentiary record. The AOJ must perform all necessary follow-up indicated. If the records are not available, the AOJ should advise the Veteran of the status of his records, and give the Veteran the opportunity to obtain the records on his own. 2. After the above development has been completed, and after any records obtained have been associated with the evidentiary record, the Veteran should be afforded a VA examination with an appropriate examiner to determine the nature and etiology of his current back and right lower extremity/foot disabilities. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. The examiner should elicit a full history from the Veteran. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. After the record review, and a thorough examination and interview of the Veteran, the VA examiner should offer his/her opinion with supporting rationale as to the following inquiries: a) Please identify with specificity all back disabilities which are currently manifested, or which have been manifested at any time since April 2010. b) Please identify with specificity all disabilities of the right lower extremity/foot which are currently manifested, or which have been manifested at any time since August 2011. The examiner should address the diagnoses from the May 2011 Dr. A.M.S. independent medical examination report, and the Veteran's testimony that his right foot is affected. c) For each back diagnosis, is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's current back disability was either incurred in, or is otherwise related to, the Veteran's military service? The examiner should specifically address the Veteran's contentions that his back pain began during active duty service due to long walks/marches with heavy packs as an infantryman, he received treatment for his back in service, and that his back pain has continued ever since service. The examiner should also address the opinion from Dr. A.M.S. in the May 2011 independent medical examination report. d) Is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's current arthritis of the back manifested within a year of his separation from active duty service? e) For each right lower extremity/foot diagnosis, is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's current right lower extremity/foot disability was caused by his back disability? The examiner should specifically address the opinion from Dr. A.M.S. in the May 2011 independent medical examination report. f) For each right lower extremity/foot diagnosis, is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's current right lower extremity/foot disability is aggravated by his back disability? Aggravation indicates a worsening of the underlying condition as compared to an increase in symptoms. If aggravation is found, the examiner should attempt to identify the baseline level of the disability that existed before aggravation by the service-connected disability occurred. The complete rationale for all opinions should be set forth. 3. Issue a statement of the case, and notify the Veteran of his appellate rights, with respect to the issues of entitlement to an increased initial disability rating for status post hammer toe surgery with residuals of metatarsalgia, and entitlement to an earlier effective date for the grant of service connection for status post hammer toe surgery with residuals of metatarsalgia. The Veteran should be informed of the requirements to perfect an appeal with respect to these issues. If the Veteran perfects an appeal, the AOJ should ensure that all indicated development is completed before the case is returned to the Board. 4. After the above development has been completed, readjudicate the claims of entitlement to service connection for a back disability and for a disability of the right lower extremity/foot. If either benefit sought remains denied, provide the Veteran with a supplemental statement of the case, and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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 LANE 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).