Citation Nr: 1808205 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 11-28 779 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to a rating in excess of 20 percent for lumbar spine strain with paravertebral spasms, to include restoration of a 40 percent rating. 2. Entitlement to service connection for a bilateral foot disability other than bilateral metatarsalgia, to include as secondary to service-connected disabilities. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Sorathia, Counsel INTRODUCTION The Veteran served on active duty for training from July 1990 to December 1990 and on active duty from March 1991 to July 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2010 and March 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Veteran was afforded a hearing before the undersigned Veterans Law Judge in November 2017. A transcript of the hearing is associated with the claims file. In April 2017, the Board referred the issue of clear and unmistakable error (CUE) with respect to the effective date of service connection for gout. It appears that the Agency of Original Jurisdiction (AOJ) has not yet adjudicated the issue. Therefore, the Board does not have jurisdiction over it, and it is again referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The issue of entitlement to service connection for a foot disability other than bilateral metatarsalgia is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDING OF FACT At the November 2017 Board hearing, the issue of entitlement to a rating in excess of 20 percent for lumbar spine strain with paravertebral spasms, to include restoration of a 40 percent rating, was withdrawn. CONCLUSION OF LAW The criteria for withdrawal of the claim are met. 38 U.S.C. § 7105(d)(5) (West 2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. The issue of entitlement to a rating in excess of 20 percent for lumbar spine strain with paravertebral spasms, to include restoration of a 40 percent rating, was withdrawn at the November 2017 Board hearing. Since the issue has been withdrawn, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the issue and it is dismissed. ORDER A rating higher than 20 percent for lumbar spine strain with paravertebral spasms, to include restoration of a 40 percent rating, is dismissed. REMAND The Veteran contends that his foot disabilities had its onset in service. Specifically, he reports that his foot disabilities are caused by stepping on uneven terrain while carrying heavy equipment. Service treatment records show an August 1992 injury to the left toe and a November 1997 "injured foot." In April 1998, the Veteran reported that he had problems stepping in pot holes in the field and on uneven surfaces. In the alternative, he contends that his foot disabilities are caused or aggravated by his service-connected disabilities. He reports that his service-connected lumbar spine disability resulted in an altered gait that caused or aggravated his foot disabilities. This claim was remanded in October 2014 and April 2017 in order to obtain an adequate medical opinion regarding the etiology of the Veteran's foot disabilities. However, an adequate medical opinion has still not been obtained and an additional remand is required. Specifically, the medical opinions of record do not adequately consider the lay statements that his foot pain began in service. The medical opinions also do not fully consider the reports of foot pain in the service treatment records. Moreover, the medical opinions do not include an adequate opinion regarding whether the foot disabilities are caused or aggravated by his service-connected disabilities. The April 2010 examiner opined that plantar fasciitis was not related to the service-connected lumbar spine disability. He stated that plantar fasciitis had known risk factors, to include exercises and activities that place stress on the heel. However, the medical opinion did not consider the Veteran's statement that his foot disabilities are caused by in-service marching on uneven terrain. A March 2016 medical opinion stated that pes planus is not related to service but then noted that hypertension is a risk factor and that pes planus could "possibly" be related to gout. No further explanation was provided even though the Veteran is service-connected for hypertension and gout. June 2017 opinions are also inadequate. The opinions stated that foot disabilities were less likely than not related to service but did not include a thorough rationale. Additionally, the opinions did not adequately address whether the foot disabilities were caused or aggravated by service-connected disabilities. Accordingly, an additional medical opinion is required. For the purposes of the medical opinion, the examiner must assume that the Veteran has a diagnosis of bilateral flatfoot, bilateral plantar fasciitis, and bilateral degenerative joint disease. See December 2017 private examination report; McClain v. Nicholson, 21 Vet. App. 319 (2007). Additionally, during the hearing, the Veteran testified that he has sought private treatment from Dr. R.B. for his feet for approximately six years. Although some treatment records from this doctor are associated with the claims file, it appears that a complete record of his treatment history with this doctor has not been received. Accordingly, upon remand, the AOJ should attempt to obtain outstanding treatment records from Dr. R.B. Accordingly, the case is REMANDED for the following action: 1. Associate with the claims file records of VA treatment dated since January 2018. 2. Afford the Veteran an additional opportunity to identify or submit pertinent private treatment records, to include records from Dr. R.B. The identified records should be sought. Any negative response should be associated with the claims file. 3. Then, obtain an addendum medical opinion from an appropriate medical provider to determine the nature, onset, and etiology of the Veteran's foot disabilities. If an examination is required to answer the following questions then an examination should be scheduled. For the purposes of this medical opinion, the evaluator must assume that the Veteran has a diagnosis of bilateral flatfoot, bilateral plantar fasciitis, and bilateral degenerative joint disease. The evaluator is asked to address the following questions: i) For each diagnosed foot disability, state whether it is at least as likely as not that the foot disability had its onset in service or is otherwise related to service. The evaluator should consider the Veteran's lay statements that his foot disability is caused by stepping on uneven terrain during service while carrying heavy equipment. The evaluator should review the service treatment records that show an August 1992 injury to the left toe and a November 1997 "injured foot." In April 1998, the Veteran reported that he had problems stepping in pot holes in the field and on uneven surfaces. In light of the Veteran's contention that his foot disability is related to marching in service, the evaluator should also discuss the April 2010 medical opinion that states that a known risk factor for plantar fasciitis is exercise or activity that places stress on the heel. ii) For each diagnosed foot disability, state whether it is at least as likely as not that the foot disability is caused by his service-connected disabilities, to include lumbar spine, degenerative joint disease of the right knee, gout, metatarsalgia associated with gout, and hypertension. The evaluator should consider the Veteran's lay statements that his lumbar spine disability resulted in an altered gait that caused his foot disability. The evaluator should also discuss the March 2016 opinion which states that a risk factor for pes planus is hypertension and that pes planus could "possibly" be related to gout. iii) For each diagnosed foot disability, state whether it is at least as likely as not that the foot disability is aggravated by his service-connected disabilities, to include lumbar spine, degenerative joint disease of the right knee, gout, metatarsalgia associated with gout, and hypertension. The evaluator should consider the Veteran's lay statements that his lumbar spine disability resulted in an altered gait that impacted his foot disability. The evaluator should also discuss the March 2016 opinion which states that a risk factor for pes planus is hypertension and that pes planus could "possibly" be related to gout. 4. Then readjudicate the claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond. The Veteran 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. §§ 5109B, 7112 (2012). ______________________________________________ Cynthia M. Bruce Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs