Citation Nr: 20005656 Decision Date: 01/23/20 Archive Date: 01/23/20 DOCKET NO. 17-18 428 DATE: January 23, 2020 REMANDED The issue of an evaluation greater than 20 percent for degenerative disc disease at L3-L4 and L4-L5 and disc herniations at L3-L4, L4-L5, and L5-S1 is remanded. The issue of service connection for a left foot disability is remanded. The issue of service connection for a right foot disability is remanded. REASONS FOR REMAND The Veteran had active service from May 1980 to May 1984, March 1986 to March 1998, and March 1998 to May 2003. This matter comes before the Board of Veterans’ Appeals (Board) from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and his representative appeared at a September 2019 Board hearing. A transcript of that hearing has been associated with the record. At the hearing, the appellant’s representative requested that the record be kept open for 90 days to allow the Veteran to submit additional medical evidence. Additional medical evidence was submitted, and that 90-day period has expired. 38 C.F.R. § 20.605. 1. An evaluation greater than 20 percent for degenerative disc disease at L3-L4 and L4-L5 and disc herniations at L3-L4, L4-L5, and L5-S1. At the hearing, the Veteran credibly testified that his back disability worsened since the last VA examination in April 2013. A review of the record shows that he received back surgery in July 2013, receiving a temporary 100 percent evaluation until November 2013. No VA examinations were conducted after his surgery. In light of the Veteran’s statements and evidence of surgery affecting the service-connected back since his last VA examination in April 2013, the Veteran should be afforded a new VA examination to obtain contemporaneous, pertinent information to assess the current nature and severity of his service-connected back disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). 2. Service connection for bilateral foot disability. The Veteran credibly contends that his bilateral foot disability are caused by active service, specifically “having pumps and other heavy machinery fall on [his] feet.” Service treatment records show that the Veteran did not have, or report, any foot trouble in December 2002, nearly half a year before his discharge in May 2003. During a VA examination in January 2005, the Veteran was diagnosed as having pes planus. Medical evidence submitted after the hearing show the Veteran reporting “off-and-on heel pain for over 20 years” in September 2019. The Veteran denied having any injuries and the private practitioner opined that he had plantar fasciitis. The private practitioner also opined that the Veteran’s bilateral plantar fasciitis was caused by “increased walking [or] standing in non-supportive shoes, hard surfaces, and flat foot.” In December 2016, the Veteran was also diagnosed as having hammertoe on his right foot. In February 2017, the RO stated that the Veteran’s original service treatment records could not be obtained and that further efforts to obtain them would be futile. VA’s duty to assist also includes obtaining a medical examination or opinion when such is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). An examination or medical opinion is necessary if the evidence of record (1) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and (2) establishes that the claimant suffered an event, injury, or disease in service; or has a presumptive disease or symptoms of such a disease manifesting during an applicable presumptive period; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service; but (4) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. Id.; see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to the claims of service connection for left and right foot disability, the statutory duty to assist has been triggered, as the Veteran credibly contended that his current disabilities causally related to service, such as dropping machinery on his feet. There are no service treatment records contradicting his claims. Other evidence of record suggests possible association with his service as he was diagnosed as having pes planus shortly after discharge. He is also currently diagnosed as having bilateral plantar fasciitis and a hammertoe in his right foot. He has not yet been afforded an examination for these claims. The Board thus finds that the Veteran should be afforded appropriate examinations with respect to his service connection claims. The matters are REMANDED for the following action: 1. Schedule the Veteran for a new VA examination as to the severity of his service-connected back disability. All necessary tests should be conducted. The claims file must be sent to the examiner for review. The examiner should examine the Veteran and render findings in accordance with the currently applicable disability benefits questionnaire. All opinions must be supported by a detailed rationale. 2. Schedule the Veteran for a VA examination as to the nature and etiology of his bilateral foot disabilities, if any. The clinician should review the virtual file. The clinician is to address the following: (a) State whether bilateral pes planus, plantar fasciitis, hammer toe, or any other feet disabilities, are currently present on either foot. If the examiner disagrees with a diagnosis already established in the medical records, to include pes planus, plantar fasciitis, or hammertoe, he/she should so state and explain why. (b) Whether it is at least as likely as not (50 percent or greater probability) that any feet disability, if diagnosed, manifested during or is otherwise related to the Veteran’s period of active service. A rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. Contrary medical opinion(s) of record must be discussed. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Yun The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.