Citation Nr: 21010932 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 17-05 504 DATE: February 26, 2021 REMANDED The issue of entitlement to service connection for a low back disability, to include as secondary to the service-connected disabilities of bilateral pes planus and Morton’s neuroma (also claimed as leg pain), and/or cervical spine arthritis, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1979 to July 1983, and from February to November 1985. In November 2019, the Veteran testified under oath before the undersigned Veterans Law Judge at a videoconference hearing. A transcript of the hearing is of record. In November 2019, the Board remanded this appeal for additional development. For the reasons outlined below, the Board finds that remand is again needed. The issue has been expanded and recharacterized pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009). Entitlement to service connection for a low back disability, to include as secondary to the service-connected disabilities of bilateral pes planus and Morton’s neuroma (also claimed as leg pain), and/or cervical spine arthritis. The Board finds that additional development is needed prior to final adjudication of the issue on appeal. First, the Board finds that the Veteran should be informed of the status of his request for records. Following the November 2019 Board remand, the Veteran submitted VA Forms 21-4142 and 21-4142a, providing a release and identifying a number of treatment providers. See VA Forms 21-4142 and 21-4142a, January 2020. However, it appears that the AOJ was unable to obtain several of the treatment records identified. It is not clear from the record that the Veteran was informed of the status of these requests. Accordingly, upon remand, the Board asks that the Veteran be contacted and informed of the status of his request for records. In addition, the Board finds that a new VA opinion is needed. Specifically, the Board finds that a new opinion is needed that addresses the theory of entitlement on a secondary basis. The Board acknowledges the January 2020 VA opinion, but finds that it does not adequately address the Veteran’s contentions. For example, at the November 2019 hearing, the Veteran’s representative indicated that that the Veteran has “noted abnormalities of his gait and several gait problems.” The Board notes as well that a July 2018 VA treatment record contains the following notation: “Lumbar: antalgic gait with cane, reduced ROM in cervical spine and lumbar spine (flexion, extension, lateral flexion)”. Upon remand, the Board asks that a VA opinion be obtained that addresses the Veteran’s gait problems. In addition, the Board seeks clarification of the following contention. The January 2020 opinion states: “Direct trauma to the spine is also implicated as a potential cause of degenerative arthritis and degenerative disc disease in the lumbar spine. The veteran describes no significant trauma to the lumbar spine.” However, the Veteran’s service treatment records report a motor vehicle accident in April 1983. At the November 2019 hearing, the Veteran testified to the following regarding the accident: I got injuries on my neck and my lower back and my center back because I was thrown and that hit back on some metal, the chair. I don’t know if you know, inside a jeep, they’re all metal, the chairs. And they have no cushion. So when I went back, I hit it really hard, and I was hit by a deuce and a half, which is a big truck versus a little, small jeep. So I sustained a back injury. The Board asks for clarification as to why this incident reported by the Veteran was not considered a “significant trauma.” The matter is REMANDED for the following action: 1. After securing any necessary consent forms from the Veteran, obtain any outstanding treatment records, to include any VA and/or private treatment records, pertaining to the issue on appeal. All efforts to obtain these records should be documented in the claim file. The AOJ must attempt to procure copies of all records that have not previously been obtained from identified treatment sources. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the AOJ must make an initial request for the records and at least one follow-up request, if the records are not received or a response that records do not exist is not received. All attempts to secure this evidence must be documented in the claim file by the AOJ. If, after making reasonable efforts to obtain named records the AOJ is unable to secure same, the AOJ must notify the Veteran and (a) identify the specific records the AOJ is unable to obtain; (b) briefly explain the efforts that the AOJ made to obtain those records; (c) describe any further action to be taken by the AOJ with respect to the claim; and (d) that the Veteran is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. In particular, the Board asks that the AOJ address requests for records received from the Veteran in January 2020. See VA Forms 21-4142 and 21-4142a, January 2020. In addition, the Board notes that service treatment records, located on the electronic docket at 08/06/2012, 06/07/2013, and 02/09/2019, are difficult to read. The Board asks that more legible copies be associated with the electronic record, if possible. Further, the Board notes that there is an email on the electronic docket at 08/15/2013 that references an attachment. However, it is unclear to the Board that the attachment has been included in the record. The Board asks that this be clarified upon remand. All efforts should be documented in the claim file. 2. Upon completion of the above, obtain a new VA opinion to address the etiology of the Veteran’s claimed low back disability. If necessary, schedule the Veteran for a new VA examination. For each disability diagnosed, the examiner is asked to address whether it is at least as likely as not (i.e., a 50 percent or greater probability) that it was caused by the Veteran’s active duty service. The examiner is asked to specifically address the Veteran’s contentions regarding the April 1983 motor vehicle accident. The Board notes that at the November 2019 hearing, the Veteran testified to the following regarding the accident: “I got injuries on my neck and my lower back and my center back because I was thrown and that hit back on some metal, the chair. I don’t know if you know, inside a jeep, they’re all metal, the chairs. And they have no cushion. So when I went back, I hit it really hard, and I was hit by a deuce and a half, which is a big truck versus a little, small jeep. So I sustained a back injury.” In addition, the Board asks for clarification of the January 2020 opinion, which states: “Direct trauma to the spine is also implicated as a potential cause of degenerative arthritis and degenerative disc disease in the lumbar spine. The veteran describes no significant trauma to the lumbar spine.” The Board asks for clarification as to why the motor vehicle accident, as described by the Veteran, was not considered a “significant trauma.” In addition, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that claimed low back disability is proximately due to, or the result of, or aggravated (permanently worsened) beyond normal progression by the Veteran’s service-connected disabilities of bilateral pes planus and Morton’s neuroma (also claimed as leg pain), and/or cervical spine arthritis. The examiner is asked to specifically address the contention that the Veteran has “noted abnormalities of his gait and several gait problems” and treatment records supporting this contention. For example, a July 2018 VA treatment record contains the following notation: “Lumbar: antalgic gait with cane, reduced ROM in cervical spine and lumbar spine (flexion, extension, lateral flexion)”. The VA examiner should be given access to the claim file. The examiner should state that a review of the claim file was completed. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. A detailed rationale is requested for all opinions provided. 3. If upon completion of the above action the issue is denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Foster, 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.