Citation Nr: 18145009 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 15-34 599 DATE: October 25, 2018 REMANDED Entitlement to service connection for a lower back disability, to include degenerative disc disease, is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for left flat foot is remanded. Entitlement to service connection for right flat foot is remanded. Entitlement to service connection for complex regional pain syndrome, to include reflex sympathetic dystrophy, in the left leg is remanded. Entitlement to service connection for complex regional pain syndrome, to include reflex sympathetic dystrophy, in the right leg is remanded. REASONS FOR REMAND The Veteran served in the Army National Guard from July 1984 to March 1988, to include active duty for training from October 1984 to January 1985. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a November 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for degenerative disc disease in the lumbar spine; denied service connection for bilateral reflex sympathic dystrophy; denied service connection for flat feet; and denied service connection for ankle condition. The appellant timely appealed the rating decision with a notice of disagreement received by VA in September 2012. After the RO issued a statement of the case in September 2015, the appeal was perfected with the timely filing of a substantive appeal in the same month. The appellant testified before the undersigned Veterans Law Judge at a September 2016 hearing at the RO in Little Rock, Arkansas. A hearing transcript has been associated with the claims file and reviewed. The undersigned kept the record open until November 21, 2016 to allow the appellant to submit additional evidence. The issues on appeal have been recharacterized to better reflect the state of the record. 1. Entitlement to service connection for a lower back disability, to include degenerative disc disease, is remanded. Service treatment records reflect that the Veteran complained of a lower back pain lasting three days in December 1984. Moreover, at the September 2016 Board hearing, the Veteran indicated that he fell on an obstacle course in service around 1984. The Board cannot make a fully-informed decision on the issue because no VA examiner has opined whether the Veteran’s in-service injury is related to a lower back disability. 2. Entitlement to service connection for ankle disability is remanded. At the September 2016 Board hearing, the Veteran indicated that he hurt his ankle during basic training—specifically, he twisted his right ankle while running and was placed on light duty for approximately one week. The Veteran’s service treatment records reflect that he sprained his foot and swelled his ankle in August 1986. Moreover, at the hearing the Veteran stated that he has been limping since service due to ankle injury. The Veteran also indicated at the hearing that when his right ankle was examined at work in 2009, he was told his ankle injury was related to a prior injury. The Board cannot make a fully-informed decision on the issue because no VA examiner has opined whether the Veteran’s in-service injury is related to an ankle disability. The Veteran has indicated that both ankles have been hurting him. As such, the Board remands the issue with respect to both ankles. 3. Entitlement to service connection for bilateral flat foot is remanded. Although the Veteran indicated at the September 2016 hearing that he wishes to withdraw the claim, the Board recognizes the recent decision of the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) addressing the standard to withdraw an issue on appeal on the record during a Board hearing. Specifically, the Federal Circuit held that the withdrawal must be explicit, unambiguous, and done with a full understanding of the consequences of such action by the appellant. Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). In this case, the hearing transcript does not reflect that the third Acree criterion has been met. As such, the Board does not consider the matter withdrawn. The Veteran’s service treatment records reflect that he sprained his foot in August 1986. Moreover, at the hearing the Veteran stated that he has been limping since service. The Board cannot make a fully-informed decision on the issue because no VA examiner has opined whether the Veteran’s in-service injury is related to flat feet. 4. Entitlement to service connection for complex regional pain syndrome, to include reflex sympathetic dystrophy, in the legs is remanded. Although the Veteran indicated at the September 2016 hearing that he wishes to withdraw the claim, the Board recognizes the recent decision of the Federal Circuit addressing the standard to withdraw an issue on appeal on the record during a Board hearing. Specifically, the Federal Circuit held that the withdrawal must be explicit, unambiguous, and done with a full understanding of the consequences of such action by the appellant. Acree, 891 F.3d at 1009. In this case, the hearing transcript does not reflect that the third Acree criterion has been met. As such, the Board does not consider the matter withdrawn. The Board cannot make a fully-informed decision on the issue because no VA examiner has opined whether the Veteran’s complex regional pain syndrome is related to active service, to include in-service back injury. Additionally, on remand, any outstanding, pertinent VA treatment records should be obtained. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding, pertinent VA treatment records. As many attempts should be made as necessary to obtain the VA records, to include requesting a specific negative response if no records are located. The appellant is to be notified of any unsuccessful effort to obtain outstanding VA and private treatment records to allow the opportunity to obtain and submit those records for VA review. Moreover, notify the appellant that he may submit VA Forms 21-4142 and 21-4142a to authorize any private medical provider to disclose and release to VA information on the Veteran’s treatment, and then request those medical records from the private medical provider(s). Additionally, notify the appellant that he may submit any relevant VA and private treatment records in his possession to VA. 2. After all development has been completed and returned from step 1 above, schedule the Veteran for an examination of his lower back. If the Veteran fails to report to the examination, then an appropriately qualified VA clinician must still answer the questions below. The clinician is asked to review the claims file to become familiar with the pertinent medical history before providing a medical opinion on the following: (a.) Identify any and all lower back disabilities shown or treated at any time during the claim period. (b.) Is any lower back disability shown or treated at any time during the claim period at least as likely as not (50 percent or greater probability) related to active service, to include the Veteran’s complaints of lower back pain in December 1984? If not, does the record at least as likely as not (50 percent or greater probability) show that any lower back disability manifested within one year of the Veteran’s separation from service? Consider all lay and medical evidence, to include the Veteran’s service treatment records and the Veteran’s contention that he injured his back on an obstacle course in service. Consider also the Veteran’s work injury in the back as reflected in his private medical records from 1993. Provide a comprehensive rationale for any opinions and conclusions offered. If a requested opinion cannot be provided without resort to speculation, court cases require the examiner to explain why the opinion cannot be offered, and to state whether the inability is due to the absence of evidence or to the limits of scientific or medical knowledge. If any medical literature is cited, then provide a copy of it or a link to it. 3. After all development has been completed and returned from step 1 above, schedule the Veteran for an examination of his feet. If the Veteran fails to report to the examination, then an appropriately qualified VA clinician must still answer the questions below. The clinician is asked to review the claims file to become familiar with the pertinent medical history before providing a medical opinion on the following, for each foot: (a.) Is any ankle disability shown or treated at any time during the claim period at least as likely as not (50 percent or greater probability) related to active service? It is noted that the treatment for a sprained foot and swollen ankle in August 1986 was not during a period of ACDUTRA or other form of active service; the ACDUTRA period ended in January 1985. If not related to active service, does the record at least as likely as not (50 percent or greater probability) show that any ankle disability manifested within one year of the Veteran’s separation from active service (i.e. by January 1986)? (b.) Is any flat foot shown or treated at any time during the claim period at least as likely as not (50 percent or greater probability) related to active service? It is noted that the treatment for a sprained foot in August 1986 was not during a period of ACDUTRA or other form of active service; the ACDUTRA period ended in January 1985. Consider all lay and medical evidence, to include the Veteran’s service treatment records and his contention at the September 2016 Board hearing that he twisted his ankle in service. Provide a comprehensive rationale for any opinions and conclusions offered. If a requested opinion cannot be provided without resort to speculation, court cases require the examiner to explain why the opinion cannot be offered, and to state whether the inability is due to the absence of evidence or to the limits of scientific or medical knowledge. If any medical literature is cited, then provide a copy of it or a link to it. 4. After all development has been completed and returned from step 1 above, schedule the Veteran for an examination of his legs. If the Veteran fails to report to the examination, then an appropriately qualified VA clinician must still answer the questions below. The clinician is asked to review the claims file to become familiar with the pertinent medical history before providing a medical opinion on the following: (a.) Is any complex regional pain syndrome, to include reflex sympathetic dystrophy, shown or treated at any time during the claim period at least as likely as not (50 percent or greater probability) related to active service, to include the Veteran’s complaints of lower back pain in December 1984? Consider all lay and medical evidence, to include the Veteran’s service treatment records and his contention at the September 2016 Board hearing that he injured his back on an obstacle course in service. Consider also the Veteran’s work injury in the back as reflected in his private medical records from 1993. Provide a comprehensive rationale for any opinions and conclusions offered. If a requested opinion cannot be provided without resort to speculation, court cases require the examiner to explain why the opinion cannot be offered, and to state whether the inability is due to the absence of evidence or to the limits of scientific or medical knowledge. If any medical literature is cited, then provide a copy of it or a link to it. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Shouman, Associate Counsel