Citation Nr: 1804185 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 06-36 706 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a lumbar spine disorder, including as secondary to service-connected bilateral metatarsalgia, left ankle strain and tendonitis, and right ankle strain and tendonitis. 2. Entitlement to service connection for a cervical spine disorder, including as secondary to service-connected bilateral metatarsalgia, left ankle strain and tendonitis, and right ankle strain and tendonitis. 3. Entitlement to service connection for a right knee disorder, including as secondary to service-connected bilateral metatarsalgia, left ankle strain and tendonitis, and right ankle strain and tendonitis. 4. Entitlement to service connection for a left knee disorder, including as secondary to service-connected bilateral metatarsalgia, left ankle strain and tendonitis, and right ankle strain and tendonitis. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Veteran and VW ATTORNEY FOR THE BOARD David Nelson, Counsel INTRODUCTION The Veteran served on active duty from August 1961 to June 1963 and from August 1963 to July 1966. This matter initially came before the Board of Veterans' Appeals (Board) on an appeal from a May 2006 rating decision issued by Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The case was most previously before the Board in November 2015. The Veteran testified before the undersigned Veterans Law Judge in July 2010. The Veteran also testified before a decision review officer (DRO) at the RO in April 2008. The November 2015 Board decision denied the Veteran's claims. The Veteran appealed the November 2015 Board decision to the United States Court of Appeals for Veterans Claims (Court). In May 2017 the Court issued a memorandum decision that vacated the November 2015 Board decision. The Veteran was sent a letter on September 18, 2017 indicating that he had 90 days to submit additional evidence or argument. No such evidence or argument has been submitted. This appeal was processed using the Veterans Benefits Management System (VBMS) and the Legacy Content Manager (LCM) system. The LCM contains documents that are either duplicative of the evidence in VBMS or not relevant to the issues on appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran contends that disabilities of his lumbar spine, left and right knees and cervical spine are caused or aggravated by his service-connected metatarsalgia and ankle disabilities. His contentions include that his service-connected foot and ankle disabilities caused an altered gait which resulted in the development of bilateral knee and back problems and that the back disorder then caused the neck disorder. Remand is required in this case to obtain an adequate opinion in compliance with the May 2017 Memorandum Decision. In denying the Veteran's claims, the November 2015 Board decision relied primarily on a July 2013 VA opinion. The memorandum decision held that the Board erred in relying on the July 2013 medical opinion as it was "based on an inaccurate factual predicate." In particular, the memorandum decision noted the following: The [Veteran] is service connected for foot pain. The record reflects that his feet hurt intermittently and that he limps when his feet hurt. The March 2005, April 2005, February 2007, November 2008, February 2009, and May 2009 medical records all refer to the appellant's altered gait. Additionally, the November 2005, November 2008, and May 2011 medical records all refer to the appellant's foot pain. Although the [July 2013 VA examiner] cites evidence of a lack of foot pain and therefore no antalgic gait, the record clearly establishes intermittent foot pain that leads to an altered gait. Instead of spending time citing examples of asymptomatic feet, the examiner should have answered the question whether the appellant's pain-induced altered gait caused or aggravated the conditions alleged on appeal to be service connected. Remand is required for the Board to provide an examination that adequately considers the appellant's medical history. The memorandum decision also stated that given "that none of the medical evidence gathered is sufficient to adjudicate the appellant's claims, the Court advises the Board to simply obtain an adequate medical opinion." Based on the foregoing, the Board finds that remand is required to obtain a medical examination and opinion that addressed the medical matters raided by his appeal. See Barr v. Nicholson, 21 Vet App 303 (2007) (holding that when VA undertakes to provide the Veteran with an examination, it must insure the examination is adequate). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment on and after May 31, 2016. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, provide the Veteran with a new comprehensive examination. The claims folder must be made available to the examiner. An explanation for all opinions expressed must be provided. The examiner must indicate whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's service-connected foot and ankle disorders caused or aggravated the Veteran's bilateral knee, back, and neck disorders. If knee and/or back disorders are determined to be related to the service-connected foot and/or ankle disabilities then the examiner should also opine whether it is at least as likely as not (a 50 percent or greater probability) the neck disorder was caused or aggravated by the bilateral knee or back disorders. The examiner must specifically comment upon the Veteran's assertion that he walked with an intermittently antalgic gait. The examiner should not reference any medical opinion of record in providing the requested opinions but must address any relevant medical records and the Veteran's lay statements of record. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. Ensure compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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). 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). _________________________________________________ K. MILLIKAN 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).