Citation Nr: 21040426 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 16-33 908 DATE: July 3, 2021 REMANDED The issue of service connection for a lumbosacral strain is remanded. The issue of service connection for a bilateral foot disorder (claimed as foot pain) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1996 to August 1996. This matter comes before the Board of Veterans' Appeals (Board) from a November 2015 rating decision. In March 2021, the Veteran testified at a Board virtual hearing; a transcript of the hearing is associated with the claims file. For clarification regarding the claim for service connection for a bilateral foot disorder, the Board notes that the November 2015 rating decision denied service connection for bilateral foot pain and athlete's foot. In December 2015, VA received a notice of disagreement (NOD) from the Veteran regarding his claimed back disability. Later that month, his representative filed a NOD on his behalf that included the issue of service connection for a bilateral foot disorder. However, neither the Veteran nor his representative filed a NOD regarding the denial of service connection for athlete's foot. As a result, although the Veteran mentioned a rash involving his feet at the Board hearing, the Board does not have jurisdiction to consider that issue. If the Veteran believes he has a current athlete's foot or tinea pedis disability related to his military service, he may file a Supplemental Claim and submit new and relevant evidence. 1. The issue of service connection for a lumbosacral strain is remanded. The Veteran contends that he started having back pain during basic training and advanced individual training (AIT) from carrying a heavy rucksack during long marches. He believes this activity injured his back and reports that he has had the same back problem since discharge from military service. In March 2021, he testified that he "did have back problems prior to the military" but the in-service marches with heavy backpacks aggravated his back or contributed to additional back problems. He described seeking treatment multiple times during active duty service, being placed on physical profile, and being discharged from service due to back problems. He testified that he sought private medical treatment for back pain within a couple months of his discharge and continued to seek treatment for back problems intermittently since that time. This appeal must be remanded for additional development. Currently, the earliest post-service treatment records associated with the claims file begin in April 2012. The AOJ should ask the Veteran to submit private treatment records related to his back problems since separation from service but prior to April 2012 that have not already been provided. Then, the AOJ should obtain a supplemental medical opinion regarding the etiology of his current lumbosacral strain, which was diagnosed on VA examination in November 2015. To assist the reviewing examiner, a brief summary of the evidence is provided. The Veteran's service treatment records reflect that he denied any history of recurrent back pain in an October 1995 enlistment medical history report. On entrance examination the same day, his spine was documented as normal on clinical evaluation. A disease or injury of the spine was not noted. Therefore, he was presumed to be in sound condition at entrance examination. In June 1996, he sought treatment for a two-week history of low back pain. He denied any trauma. The assessment was muscle pain. He continued to complain of back pain. The assessment following a physical therapy consultation was musculo-ligamentous low back pain. During a follow-up visit a few days later, he described having back pain that increased with strenuous physical activities. The assessment included persistent low back pain, muscular in nature and aggravated by stress. The physician recommended a medical discharge and sent the Veteran to a medical officer for a permanent profile until his discharge. Another medical note from that day acknowledged the recommendation to discharge the Veteran. He reported a preexisting history of low back pain prior to entry on active duty. The plan included another evaluation and a 30-day physical profile. A June 1996 lumbar spine x-ray report detailed that vertebral bodies, disc spaces, and the posterior elements were intact; there was no disc space narrowing, fracture, or dislocation. The Veteran was afforded an examination in July 1996 prior to his discharge. He reported having low back pain prior to joining the Army and that the pain in his lower back had worsened with increased activity. He denied any radiation into his legs and denied any numbness, paresthesias, or bowel or bladder problems. On examination, he appeared in no apparent pain; his back was without deformity. He was discharged the following month for failure to meet procurement medical fitness standards. An April 2012 private treatment record reflects the Veteran's complaint of pain in his neck that radiated down his back after moving boxes at work the night before. He pointed to the cervical region of his spine and physical examination revealed diffuse muscular tenderness at the cervical spine. The assessment was sprain of neck. An August 2012 treatment record indicates the Veteran denied any back pain during a review of systems. The Veteran was afforded a VA examination in November 2015. He described a long history of low back pain that existed prior to service and had worsened. The report of a lumbosacral spine x-ray study noted the alignment, disc spaces, vertebral body height, pedicles, transverse processes, and sacroiliac joints were normal. Following a review of the claims file and examination, the diagnosis was lumbosacral strain. The examiner opined that the back strain was not aggravated beyond its natural progress by an injury or illness in service, reasoning that there was no documentation or report of an injury occurring during service that would have caused or exacerbated this condition. The examiner added that chronic low back pain in the general population is multifactorial and self-limiting in nature. Unfortunately, the VA examiner did not provide a medical opinion as to whether the current lumbosacral strain began in service or was otherwise related to military service, including records reflecting the Veteran's complaints of back pain associated with strenuous physical activities. Subsequent private treatment records associated with the claims file show that the Veteran injured his back at work in January 2020. The impression of a lumbar spine x-ray study was no compression fracture or acute abnormality. The impression of a February 2020 lumbar spine MRI study was degenerative disc disease most pronounced at L4-L5 and L5-S1. In March 2021 correspondence, O. White, APRN, indicated that the Veteran was a patient under her care and she had "reviewed his medical records." She opined it was "as least as likely as not and to my knowledge that both his feet and back issues are aggravated and related to his military service." This medical opinion is insufficient to decide the claim because it was not supported by any medical rationale. 2. The issue of service connection for a bilateral foot disorder (claimed as foot pain) is remanded. The Veteran contends he has a bilateral foot disorder manifested by pain caused by long walks and marches during service while carrying a heavy rucksack and wearing combat boots. He testified that he went to the doctor during service when his feet began to swell and hurt and he was put on a physical profile due to his feet. Regarding post-service foot problems and treatment, he testified that he started seeing a doctor about his feet around 2015 because they started swelling and peeling, and he was diagnosed with eczema. His representative summarized the Veteran's contention that his foot problem in service were more musculoskeletal involving "more strain and pulling and tendons" in his feet while his current foot problem was a "dermatology-type deal," diagnosed as eczema. The Veteran affirmed the summary of his contention was correct. The Veteran's service treatment records show he denied any history of foot trouble in an October 1995 enlistment report of medical history. On enlistment examination the same day, the examiner noted the Veteran had moderate pes planus of his feet that was asymptomatic and not considered disabling. His service treatment records are otherwise silent for complaints, diagnosis, or treatment for any problems involving his feet. In addition, although service treatment records mention placing the Veteran on a physical profile for low back pain, the only actual physical profile of record pertained to pseudofolliculitis barbae, allowing him to shave every third day. During a July 1996 discharge examination, the Veteran's only complaint related to back pain. Post-service private treatment records dating since April 2012 and silent for complaints, diagnosis, or treatment related to pes planus or other musculoskeletal foot problems. A December 2015 private treatment record reflects the Veteran's complaint that his feet were changing colors. Reported examination findings included hypopigmentation and scales on the soles of both feet with hyperpigmented patches. The assessment included tinea pedis; he was referred to a dermatologist. During a dermatology consultation later that month with B. Kaplan, M.D., the Veteran complained of pruritic patches on his feet that were most severe on the instep areas, breaking out, and itching between his toes that had been recurrent for several years. The diagnosis was tinea infection between toes; eczema on soles of feet. In March 2021 correspondence, O. White, APRN, indicated that the Veteran was a patient under her care and she had "reviewed his medical records." She opined it was "as least as likely as not and to my knowledge that both his feet and back issues are aggravated and related to his military service." This medical opinion is insufficient to decide the claim because it does not identify the nature of the foot problem and because it was not supported by any medical rationale. The AOJ should ask the Veteran to submit any private treatment records related to bilateral pes planus or musculoskeletal problems involving the feet. If any records show a current pes planus or musculoskeletal foot disorder, then the AOJ should arrange for a VA examination to obtain a medical opinion regarding the nature and etiology of the bilateral foot disorder. The matters are REMANDED for the following action: 1. Ask the Veteran to submit private treatment records dating since separation from military service related to evaluation and treatment for back pain and bilateral pes planus or musculoskeletal foot pain. Alternatively, ask him to submit an authorization to release information to allow VA to obtain any identified private treatment records on his behalf. 2. Provide the Veteran's electronic claims file and a copy of this Remand to an appropriate clinician to obtain a supplemental medical opinion regarding the etiology of his claimed low back disability. Following a review of the claims file, the reviewing examiner should respond to the following: a) Is it at least as likely as not (a 50 percent probability or greater) that a current low back disability, to include lumbosacral strain and degenerative disc disease, manifested during military service or is otherwise medically related to the Veteran's military service, to include his multiple complaints of back pain? b) Is it at least as likely as not (a 50 percent probability or greater) that any arthritis of the lumbar spine confirmed by x-ray evidence manifested within one year of separation from active duty service? c) For any disability of the back that was not incurred in or medically related to the Veteran's military service, state whether any such back disability clearly and unmistakably preexisted military service. If any such back disability clearly and unmistakably preexisted service, provide an opinion as to whether it is clear and unmistakable that such back disability was NOT aggravated by military service. In providing the opinion, the clinician should consider the relevant evidence of record, to include the Veteran's description of his in-service and post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his injury and symptoms align with how his current disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible. 3. Schedule a VA examination to determine the nature and etiology of the Veteran's claimed foot disorder. Provide the Veteran's electronic claims file and a copy of this Remand to the designated examiner for review. The reports of any indicated tests or studies must be associated with the examination report. Following a review of the claims file and examination, the examiner should identify any musculoskeletal foot disorder found on examination. For each musculoskeletal foot disorder, the examiner should respond to the following: a) Regarding the moderate, asymptomatic bilateral pes planus noted on entrance examination in October 1995, provide an opinion as to whether it is clear and unmistakable that the bilateral pes planus was NOT aggravated by military service. b) For any other musculoskeletal foot disorder(s) found on examination, provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the foot disorder began during military service or is otherwise related to the Veteran's military service. In providing the requested opinions, the examiner should consider the relevant evidence of record, to include the Veteran's description of his in-service and post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how his current disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laura Kirscher Strauss 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.