Citation Nr: 21061550 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 16-25 711 DATE: October 4, 2021 REMANDED Service connection for a lumbar spine disability is remanded. Service connection for a left foot disability (to include pes planus, heel spur, and plantar fasciitis) is remanded. Service connection for right foot disability (to include pes planus, heel spur, and plantar fasciitis, and mild osteoarthritis of the first metatarsophalangeal joint) is remanded. Service connection for a left ankle disability is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1994 to April 1997 and from September 2005 to August 2007, with additional service in the Georgia National Guard and Reserves. These matters come to the Board of Veterans Appeals (Board) on appeal from February 2012 and August 2016 rating decisions. These matters were previously remanded by the Board in January 2019 and May 2021. Although the Board regrets the additional delay, another remand is required for further development and readjudication. Initially, the Board notes that the Veteran's served with the National Guard and with the Reserves for over 19 years. See DPRIS Response, 11/19/21, p. 46. The record does not reflect that the Agency of Original Jurisdiction (AOJ) has taken all appropriate steps to obtain these records. Significantly, the record reflects the Veteran also had Federal active service under Title 10 and Title 32, to include in support of the United States Border Patrol at the Mexican border. While the record does contain an April 2011 Formal Finding of Unavailability of the Veteran's complete service treatment records, only one attempt was made to the State Adjutant General's office in January 2011. Notably, the AOJ made one phone call to that office and did not receive a reply. VA regulation pertaining to Federal records provides that "VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency." 38 C.F.R. § 3.159(c)(2). On remand, all attempts must be made to obtain the Veteran's Georgia National Guard, Reserve, and Federal active duty service treatment records. Additionally, in a May 2011 application for Vocational Rehabilitation, the Veteran indicated she worked as a security/corrections officer for the Federal Bureau of Prisons/Department of Justice. A June 2009 VA treatment record indicates the Veteran fell on her back the year prior; she was offered physical therapy services but chose to go through her workers' compensation claim. Given that the Veteran likely underwent routine physicals in her performance of her job with the Federal Bureau of Prisons, and because she reported a workers' compensation claim which is relating to her back, which is on appeal, all attempts to obtain these records must be made on remand. Given that these are Federal records, attempts to obtain them must be made in accordance with 38 C.F.R. § 3.159(c)(2). If any of the Veteran's service treatment records or Federal Bureau of Prisons records are unable to be obtained or it is determined that further attempts to obtain them would be futile, the AOJ must prepare a formal finding of unavailability outlining all steps taken to attempt to obtain these records and associate this memorandum with the evidence of record before the Board. Further, the Veteran has indicated that she received chiropractic treatment for her back prior to separation from her second period of active duty service. See August 2021 Statement. She had submitted an authorization to VA to allow the AOJ to attempt to obtain private records from Georgia Spine & Health Wellness. See August 2019 Medical Authorization. Unfortunately, the AOJ did not make any attempts to obtain these records. Additionally, in an August 2021 statement, the Veteran indicated she had copies of x-rays she would like to submit but was afraid of losing them. On remand, the AOJ should request that the Veteran complete an authorization from Georgia Spine & Health Wellness and, if the identified x-rays were performed with another provider, to complete an authorization from that provider to allow VA to attempt to obtain these records on her behalf. Following completion of the above, new opinions regarding the Veteran's claims regarding direct and secondary service connection must be obtained. New examinations are not required unless the medical professional designated to provide the opinions finds they are necessary. The Veteran and her representative have the right to submit additional evidence and argument on the matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). The matters are REMANDED for the following action: 1. Contact the Veteran and request that she complete and return authorizations to allow the AOJ to attempt to obtain all outstanding records from Georgia Spine & Health Wellness, any facility which conducted x-rays which she would like considered, and any other identified relevant private providers. If the Veteran returns any authorization which is incomplete or invalid, he must be notified of such and requested to return a complete and valid authorization. Upon receipt of the same, the AOJ must attempt to obtain all outstanding records in accordance with VA regulation. 2. Attempt to obtain the Veteran's outstanding service treatment records from (a) National Guard service, (b) Reserve service, (c) and any other Federal active duty service, to include, but not limited to, Title 10 and Title 32 service. All attempts to obtain these records must be made in accordance with VA regulation. The AOJ must contact the Georgia State Adjutant General. If any records are unable to be obtained or it is determined that further efforts to obtain them would be futile, the AOJ must prepare a Memorandum of Formal Finding of Unavailability documenting all steps taken to attempt to obtain these records and associate this memorandum with the Veteran's claims file. 3. Attempt to obtain the Veteran's records from the Federal Bureau of Prisons. All attempts to obtain these records must be made in accordance with VA regulation. If any records are unable to be obtained or it is determined that further efforts to obtain them would be futile, the AOJ must prepare a Memorandum of Formal Finding of Unavailability documenting all steps taken to attempt to obtain these records and associate this memorandum with the Veteran's claims file. 4. Following completion of steps 1-3, obtain medical opinions regarding the etiology of the Veteran's low back disability. A new examination is not required unless the medical professional designated to provide the below opinions finds one is necessary. The medical professional must obtain from the Veteran and record in the opinion a complete description regarding the onset and continuity of symptoms, which may be obtained via the ACE telephone process. Following a review of the record and with consideration of the Veteran's statements, please provide the following information: (a) Is it at least as likely as not (50 percent probability or higher) that the Veteran's low back disability began during or is etiologically related to her active duty service? Why or why not? (b) Is it at least as likely as not (50 percent probability or higher) that the Veteran's degenerative changes of the low back manifested within one year of her separation from her second period of active duty service (by August 2008)? Why or why not? (c) Is it at least as likely as not (50 percent probability or higher) that the Veteran's low back disability was caused by her service-connected bilateral knee disabilities? Why or why not? (d) Is it at least as likely as not (50 percent probability or higher) that the Veteran's low back disability was aggravated by her service-connected bilateral knee disabilities? Why or why not? (e) Is it at least as likely as not (50 percent probability or higher) that the Veteran's low back disability was caused by her service-connected cervical spine disability? Why or why not? (f) Is it at least as likely as not (50 percent probability or higher) that the Veteran's low back disability was aggravated by her service-connected cervical spine disability? Why or why not? The medical professional is informed that any negative opinion based solely on lack of medical treatment will be deemed inadequate. A complete rationale for each opinion is required. Citation to accepted medical literature and principles would be of great assistance to the Board. If the medical professional is unable to provide any opinion without resorting to speculation, he or she must explain why this is so. 5. Following completion of steps 1-3, obtain medical opinions regarding the etiology of the Veteran's bilateral feet disabilities. A new examination is not required unless the medical professional designated to provide the below opinions finds one is necessary. The medical professional must obtain from the Veteran and record in the opinion a complete description regarding the onset and continuity of symptoms, which may be obtained via the ACE telephone process. Following a review of the evidence and with consideration of the Veteran's statements, please provide the following: (a) Is it at least as likely as not (50 percent probability or higher) that the Veteran's pes planus (first diagnosed in 2003) began during or is etiologically related to her first period of active duty service (October 1994 to April 1997)? Why or why not? (b) Is it at least as likely as not (50 percent probability or higher) that the Veteran's plantar fasciitis (first diagnosed in 2003) began during or is etiologically related to her first period of active duty service (October 1994 to April 1997)? Why or why not? (c) Is there clear and unmistakable evidence that the Veteran's preexisting pes planus was NOT aggravated by her second period of active duty service (September 2005 to August 2007)? Why or why not? (d) Is there clear and unmistakable evidence that the Veteran's preexisting plantar fasciitis was NOT aggravated by her second period of active duty service (September 2005 to August 2007)? Why or why not? (e) Is it at least as likely as not (50 percent probability or higher) that the Veteran's bilateral heel spurs (first diagnosed in 2008) began during or are etiologically related to her active duty service (October 1994 to April 1997 and September 2005 to August 2007)? Why or why not? (f) Is it at least as likely as not (50 percent probability or higher) that the Veteran's mild arthritis of the first metatarsophalangeal (MTP_ joint (first diagnosed in 2001) began during or is etiologically related to her first period of active duty service (October 1994 to April 1997)? Why or why not? (g) Is it at least as likely as not (50 percent probability or higher) that the Veteran's mild arthritis of the first MTP joint (first diagnosed in 2001) manifested within one year of her separation from her first period of active duty service (by April 1998)? Why or why not? (h) Is there clear and unmistakable evidence that the Veteran's preexisting mild arthritis of the first MPT joint was NOT aggravated by her second period of active duty service (September 2005 to August 2007)? Why or why not? (i) Is it at least as likely as not (50 percent probability or higher) that the Veteran's (i) pes planus, (ii) plantar fasciitis, (iii) heel spurs, and (iv) mild arthritis of the first MPT joint were caused by her service-connected bilateral knee disability? Why or why not? A discussion as to how causation pertains to EACH diagnosed feet condition is required. (j) Is it at least as likely as not (50 percent probability or higher) that the Veteran's (i) pes planus, (ii) plantar fasciitis, (iii) heel spurs, and (iv) mild arthritis of the first MPT joint were aggravated by her service-connected bilateral knee disability? Why or why not? A discussion as to how aggravation pertains to EACH diagnosed feet condition is required. The medical professional is informed that any negative opinion based solely on lack of medical treatment will be deemed inadequate. A complete rationale for each opinion is required. Citation to accepted medical literature and principles would be of great assistance to the Board. If the medical professional is unable to provide any opinion without resorting to speculation, he or she must explain why this is so. 6. Following completion of steps 1-3, obtain medical opinions regarding the etiology of the Veteran's left ankle disability. A new examination is not required unless the medical professional designated to provide the below opinions finds one is necessary. The medical professional must obtain from the Veteran and record in the opinion a complete description regarding the onset and continuity of symptoms, which may be obtained via the ACE telephone process. The Board notes that even in the absence of a currently diagnosed disability, pain can constitute a disability; therefore, opinions must be rendered regardless of a clinical diagnosis. Following a review of the record and with consideration of the Veteran's statements, please provide the following information: (g) Is it at least as likely as not (50 percent probability or higher) that the Veteran's left ankle disability began during or is etiologically related to active duty service? Why or why not? (h) Is it at least as likely as not (50 percent probability or higher) that the Veteran's left ankle disability is caused by her service-connected left and right knee disabilities? Why or why not? (i) Is it at least as likely as not (50 percent probability or higher) that the Veteran's left ankle disability is aggravated by her service-connected left and right knee disabilities? Why or why not? The medical professional is informed that any negative opinion based solely on lack of medical treatment will be deemed inadequate. (Continued on the next page) A complete rationale for each opinion is required. Citation to accepted medical literature and principles would be of great assistance to the Board. If the medical professional is unable to provide any opinion without resorting to speculation, he or she must explain why this is so. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board O'Connell, Jessica L. 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.