Citation Nr: 21004442 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 16-13 599 DATE: January 27, 2021 REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for bilateral pes planus is remanded. THE VETERAN’S CONTENTIONS The Veteran seeks service connection for a low back disability and bilateral pes planus. He contends that he injured his back and service and has had back problems since then. See September 1975 VA Form 9; April 2013 statement. In regard to pes planus, the Veteran contends that he injured his feet due to running in combat boots and that this activity, along with standing on concrete floors and airfields, caused his arches to fall. See April 2013 statement. REASONS FOR REMAND The Veteran served on active duty in the Air Force from July 1972 to August 1973. This matter comes before the Board of Veterans’ Appeals (Board) from a May 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Board denied the Veteran’s claims for entitlement to service connection for a low back disability and pes planus. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2020 Joint Motion for Remand (JMR), the Secretary and the Veteran moved the Court to vacate and remand the Board’s March 2019 decision. The Court granted the JMR in July 2020. 1. Low back disability In the July 2020 JMR, the parties determined that the Board failed to ensure that an adequate VA examination and accompanying medical opinion was provided and that the Board failed to provide an adequate statement of the reasons and bases for its decision. Specifically, the parties determined that the Board erred by failing to ensure that the May 2014 VA examination and opinion were adequate because the examiner did not account for the facts that were relevant to the factual premise of his opinion. In providing a negative nexus opinion, the May 2014 VA examiner did not account for the Veteran’s report at separation from service that he experienced occasional back pain and that he had experienced back pain for the prior two months and used many kinds of medication. Accordingly, a remand is warranted to provide the Veteran with a new VA examination. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court’s order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the [JMR] or explain why the terms will not be fulfilled.). The new VA examination is warranted to consider the Veteran’s multiple complaints of back pain in service, including on April 19, 1973; May 4, 1973; May 8, 1973; May 9, 1973; May 21, 1973; x-ray results in 1973 and 1974 showing levoscoliosis of the lumbar spine and Schmorl’s Nodes on the inferior surfaces of the L4-5 vertebral bodies; the Veteran’s reports of continuity of back pain since service; and the fact that the Veteran filed his claim in August 1973 just weeks after separation from service, in opining whether the Veteran had a low back disability that is related to his service. In ordering remand in the instant case, the Board is not making a preliminary formal finding as to the credibility of the Veteran’s lay reports. Rather, the Board is merely requesting that the clinician on remand consider the Veteran’s own descriptions of the history of his low back disability. See Smith v. Wilkie, 32 Vet. App. 332, 338-39 (2020). 2. Bilateral pes planus In the July 2020 JMR, the parties determined that the Board’s statement of reasons or bases was inadequate when it discounted the probative value of the Veteran’s reports of in-service foot problems. The May 2014 VA foot examiner’s nexus opinion was based in part on the factual premise that there was no record of an injury or treatment of foot problems in service. The Veteran contends that he injured his feet due to running in combat boots and that this activity, along with standing on concrete floors and airfields, caused his arches to fall. In light of the Veteran’s contention, the Board finds that a remand is warranted to obtain a VA examination which considers the Veteran’s reports of in-service foot problems. In ordering remand in the instant case, the Board is not making a preliminary formal finding as to the credibility of the Veteran’s lay reports. Rather, the Board is merely requesting that the clinician on remand consider the Veteran’s own descriptions of the history of his in-service foot injury and pes planus. See Smith v. Wilkie, 32 Vet. App. 332, 338-39 (2020). Further, in the July 2020 JMR, the parties determined that VA failed to satisfy its duty to assist in obtaining outstanding in-patient hospital records. Specifically, as noted in the JMR, a May 18, 1973 clinical record narrative summary shows that the Veteran was hospitalized for 15 days between April 23, 1973 and May 8, 1973 at Castle Air Force Base. However, the single May 1973 clinical record is the only document from this hospitalization. Furthermore, the Veteran also stated that he was transported to Travis Air Force Base and treated there. These records are not contained in the claims file and must be obtained on remand. The matters are REMANDED for the following action: 1. Obtain all treatment records from the Veteran’s 15-day hospitalization between April 23, 1973 and May 8, 1973 at Castle Air Force Base, and subsequent treatment at Travis Air Force Base. 2. Forward the Veteran’s claims file to an appropriate VA clinician to provide a medical opinion regarding the nature and etiology of the Veteran’s low back disability. The entire claims file should be made available to and be reviewed by the clinician in conjunction with this request. If the clinician believes that a physical examination should be conducted in order to provide the requested opinion, one should be provided. Thereafter, the clinician should address the following: (a.) Please identify any low back disability by diagnosis. (b.) For each low back disability identified in part (a), please state whether it is at least as likely as not (50 percent probability or more) that the disability had its onset in, was caused by, or is otherwise related to service. For the purpose of providing the opinion(s) requested in part (b), please accept as valid the Veteran’s statements that he injured his back in service and has had back problems since then, and state whether a nexus between the Veteran’s low back disability and service is medically consistent with the information provided by the Veteran. (The Board reminds the Veteran that in asking the examiner to accept the history he provided, the Board is not at this time making an assessment of the credibility of his statements). In offering any opinion, the clinician should consider medical and lay evidence dated both prior to and since the filing of the claim (April 2013). Specifically, the examiner must also acknowledge and consider the Veteran’s multiple complaints of back pain in service, including on April 19, 1973; May 4, 1973; May 8, 1973; May 9, 1973; May 21, 1973; and x-ray results in 1973 and 1974 showing levoscoliosis of the lumbar spine and Schmorl’s Nodes on the inferior surfaces of the L4-5 vertebral bodies. The clinician should provide a complete rationale for any opinion rendered. If he or she cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why that is so. 3. After the records requested in item number 1 have been obtained, to the extent possible, forward the Veteran’s claims file to an appropriate VA clinician to provide a medical opinion regarding the nature and etiology of the Veteran’s pes planus. The entire claims file should be made available to and be reviewed by the clinician in conjunction with this request. If the clinician believes that a physical examination should be conducted in order to provide the requested opinion, one should be provided. Thereafter, the clinician should address the following: (a.) Please state whether the condition clearly and unmistakably (undebatably) preexisted the Veteran’s service. (b.) If the examiner finds that any condition clearly and unmistakably preexisted the Veteran’s service, please state whether that condition was clearly and unmistakably not aggravated by his service. (c.) If the condition either (i) did not clearly and unmistakably preexist any period of service, or (ii) was not clearly and unmistakably aggravated by his service, please state whether it is at least as likely (50 percent probability or more) that the condition was incurred in, caused by, or is otherwise related to service. For the purpose of providing the opinion(s) requested in parts (b) and (c), please accept as valid the Veteran’s statement that he injured his feet due to running in combat boots and that this activity, along with standing on concrete floors and airfields, caused his arches to fall, and state whether a nexus between the Veteran’s pes planus and service is medically consistent with the information provided by the Veteran. (The Board reminds the Veteran that in asking the examiner to accept the history he provided, the Board is not at this time making an assessment of the credibility of his statements). In offering any opinion, the clinician should consider medical and lay evidence dated both prior to and since the filing of the claim (April 2013). The clinician should provide a complete rationale for any opinion rendered. If he or she cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why that is so. S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Samuelson, Counsel 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.