Citation Nr: 21071685 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 17-39 812A DATE: December 1, 2021 REMANDED Entitlement to service connection for a bilateral foot disability is remanded. Entitlement to service connection for a low back disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1982 to May 1986. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified before the undersigned Veterans Law Judge at a video conference hearing. A transcript of the hearing is of record. 1. Entitlement to service connection for a bilateral foot disability is remanded. The Veteran has claimed entitlement to service connection for a bilateral foot disability, which he contends was incurred in service. The Veteran specifically contends that he injured his feet in 1986 after jumping from a vehicle while carrying his weapon and wearing heavy gear during a training exercise at Fort Irwin, California. At the July 2021 hearing, the Veteran testified that he did not seek medical treatment at the time of the incident, but that he has continued to experience pain in his feet ever since then. The Veteran has current diagnoses of osteoarthritis (OA) in both feet. To date, the Veteran has not been afforded a VA examination or medical opinion to assess the nature and etiology of his bilateral foot disability. In this case, a remand is warranted to schedule the Veteran for a VA examination and to obtain a medical opinion before the Board can make an informed decision on the claim. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to service connection for a low back disability is remanded. The Veteran seeks entitlement to service connection for a low back disability which he contends was incurred in, caused, or aggravated by military service. Specifically, the Veteran testified that he experiences severe pain in his back, stating that his duties in service that required carrying heavy equipment during service caused his current pain. The Veteran contends that he has continued to have persistent pain ever since service. The Veteran's VA treatment records show regular treatment for back pain including an August 2014 L3-L4 decompressive laminectomy. VA treatment records reflect a diagnosis of degenerative disc disease and degenerative stenosis of the lumbar spine. To date, the Veteran has not been afforded a VA examination or medical opinion to assess the nature and etiology of his low back disability. In this case, a remand is warranted to schedule the Veteran for a VA examination and to obtain a medical opinion before the Board can make an informed decision on the claim. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Alternatively, during the Veteran's July 2021 hearing, the Veteran contended that his low back disability may be caused by or secondary to his bilateral foot disability. When a theory of entitlement is raised by the record, the Board must consider it. See Szemraj v. Principi, 357 F.3d 1370, 1375-76 (Fed. Cir. 2004). In addition, the most recent VA treatment records associated with the claims file are dated in March 2017. On remand, all outstanding, pertinent VA treatment records must be obtained and associated with the claims file. Accordingly, the matters are REMANDED for the following actions: 1. Obtain all outstanding, pertinent, VA treatment records. 2. Schedule the Veteran for a VA examination with a VA physician of appropriate expertise to assess the nature and etiology of his bilateral foot disability. The examiner must review the Veteran's entire claims file, to include a copy of this REMAND, and that review must be noted in the report. A complete history of symptoms should be elicited from the Veteran. Thereafter, the examiner is requested to provide an opinion with respect to the following: (a) Identify all current bilateral foot disabilities. (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's bilateral foot disability (to include, but not limited to OA) (i) had its onset during the Veteran's active-duty service or within one year of separation, or (ii) is otherwise etiologically related to his active-duty service? In answering the foregoing, the examiner must specifically address the Veteran's lay assertions that he injured his feet after jumping from a vehicle during a training exercise at Fort Irwin, California. The examiner is reminded that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. The examiner is advised that the lack of documented treatment for the claimed disability during service cannot serve as the sole basis for a negative finding. The examiner is advised that the Veteran is competent to report his medical history and must be considered and weighed in making the determination as to whether a nexus exists between the claimed diseases and military service. The examiner must provide a complete rationale for any opinion expressed. If the examiner is unable to provide an opinion without resorting to speculation, he or she should fully explain why that is so. 3. Schedule the Veteran for a VA examination with a VA physician of appropriate expertise to assess the nature and etiology of his low back disability. The examiner must review the Veteran's entire claims file, to include a copy of this REMAND, and that review must be noted in the report. A complete history of symptoms should be elicited from the Veteran. Thereafter, the examiner is requested to provide an opinion with respect to the following: (a) Identify all current lumbar spine disabilities. (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's low back disability (to include, but not limited to degenerative disc disease and degenerative stenosis) (i) had its onset during the Veteran's active-duty service or within one year of separation, or (ii) is otherwise etiologically related to his active-duty service? (c) IF SERVICE CONNECTION FOR A BILATERAL FOOT DISABILITY IS GRANTED, is it at least as likely as not (50 percent probability or greater) that the Veteran's low back disability is caused by the Veteran's service-connected bilateral foot disability? (d) Is it at least as likely as not (50 percent probability or greater) that the Veteran's low back disability is aggravated by (increased in severity beyond its natural progression) the Veteran's service-connected bilateral foot disability? The examiner is reminded that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. The examiner is advised that the lack of documented treatment for the claimed disability during service cannot serve as the sole basis for a negative finding. The examiner is advised that the Veteran is competent to report his medical history and must be considered and weighed in making the determination as to whether a nexus exists between the claimed diseases and military service. (Continued on the next page) The examiner must provide a complete rationale for any opinion expressed. If the examiner is unable to provide an opinion without resorting to speculation, he or she should fully explain why that is so. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Rosenthal, Ariana 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.