Citation Nr: 23014664 Decision Date: 03/10/23 Archive Date: 03/10/23 DOCKET NO. 19-05 953 DATE: March 10, 2023 REMANDED Service connection for low back disability is remanded. Service connection for right foot disability is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1978 to May 1979. The matters are before the Board of Veterans' Appeals (Board) from an October 2014 rating decision. 1. Service connection for low back disability is remanded. 2. Service connection for right foot disability is remanded. The Veteran seeks service connection for a low back and right foot disabilites. He contends that his disabilities had their onset during active duty the cold weather caused frost bite on his feet, and he was exposed to the freezing elements as he slept on the cold ground. In May 2013, the Veteran was afforded a VA examination for his feet. Only the left foot was diagnosed with residuals of left foot frostbite with degenerative arthritis of the first MTT-P joint. The examiner acknowledged the Veteran's report that he experienced frostbite on both feet during active duty but noted that the service treatment records only showed treatment for left foot frostbite in April 1979. The Veteran complained of pain in both feet, especially in the big toes after walking about two miles. In March 2014, a private pain specialist submitted a disability benefits questionnaire (DBQ). He diagnosed the Veteran with pes planus and right foot arthritis. The private physician did not indicate which foot was affected with pes planus and did not fill out the rest of the DBQ, simply writing "see attached Podiatry note 3/5/14." The accompanying March 2014 VA consult demonstrated the Veteran had continued right foot pain due to service-connected frost bite, and diagnoses of right foot and low back arthritis. The private physician also did not opine as to the functional impairment of the right foot diagnoses as he did not deem himself qualified to make such a determination. Subsequently, in October 2014, a VA examiner opined that the Veteran's right foot degenerative arthritis was less likely than not caused by or aggravated by his service-connected left. As rationale, the examiner noted that pain was not a diagnosis for VA purposes, and that the May 2013 VA examination did not demonstrate any evidence of the left foot being so mechanically unstable that weight had to be transferred onto the right foot. Furthermore, had weight transfer to the right foot been required, the Veteran would have been diagnosed with other conditions that would have resulted from overuse of the right foot. The examiner concluded the rationale by explaining that osteoarthritis is typical amongst an aging population, and usually caused by wear and tear. The Board finds the May 2013 VA examination, March 2014 DBQ, and October 2014 VA medical opinion are all insufficient for adjudication purposes. First, the May 2013 VA examination only noted the Veteran's contention of right foot frostbite during active duty and was more focused on the service-connected left foot as an April 1979 consult showed treatment for only left foot frostbite during active duty. Second, the March 2014 DBQ contained no information nor assessment beyond diagnosing pes planus and right foot arthritis. The Board assumes that the pes planus diagnosis is of the right foot as the VA podiatry note that the private pain specialist referred to is regarding right foot pain. Third, the October 2014 VA examiner provided a negative etiology opinion linking the right foot disability to the service-connected left foot disability and based the rationale on a May 2013 VA examination which did not focus on the right foot, did not note the March 2014 DBQ's diagnosis of pes planus, and then stated that had the right foot been overused because of necessary weight shift from the left foot disability, certain right foot conditions would have been diagnosed due to structural abnormality. Finally, the examiner stated that the only diagnosis that would be opined about was arthritis as pain was not a diagnosis for VA purposes. The U.S. Court of Appeals for Veterans Claims (Court) held in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), that pain resulting in functional impairment could constitute a current disability, even if there is no diagnosis connecting the pain with a current underlying condition. Regarding his low back, the Veteran has not yet been afforded a VA examination to assess his low back condition. The Veteran's service treatment records from his period of active-duty service were previously of record but have since been lost. Despite exhaustive attempts to re-obtain them, including multiple rescan requests, a PIES request to the National Personnel Records Center, and asking the Veteran for any assistance, the service treatment records have not been located. As such, VA has a heightened obligation to explain its findings and to consider the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). This is not to say that there is a heightened benefit-of-the-doubt rule. Rather, VA has a heightened duty to consider the applicability of the benefit-of-the-doubt rule, and to assist the claimant in developing a claim. See Russo v. Brown, 9 Vet. App. 46, 51 (1996). Therefore, given the missing service treatment records and VA's heightened duty to assist, remand is necessary to afford the Veteran VA examinations for his claimed disabilities. The Veteran should be scheduled for VA examinations to assess the severity and manifestations of his right foot disability and low back disability, and an etiology opinion should be obtained for each. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his right foot disability. The examiner must review the claims file. The examiner should list all diagnoses related to the Veteran's right foot including pes planus and degenerative arthritis. The examiner is reminded that under Saunders, pain constitutes as a current disability if the pain results in functional impairment. For each diagnosis found, the examiner is asked to respond to the following: (a.) Is the diagnosis at least as likely as not (i.e., 50 percent or greater) due to active duty, including the Veteran's contention of experiencing frost bite during active duty due to cold weather exposure. (b.) Is the diagnosis at least as likely as not (i.e., 50 percent or greater) proximately due to or aggravated beyond its natural progression by the Veteran's service-connected left foot disability. Sufficient rationale should be provided for all opinions proffered. 2. Schedule the Veteran for a VA examination for his low back disability. The examiner must review the claims file. The examiner should list all diagnosis related to the low back including low back arthritis. For each diagnosis found, the examiner is asked to respond to the following: (a.) Is the diagnosis at least as likely as not (i.e., 50 percent or greater) due to active duty, including the Veteran's report of sleeping on cold ground in freezing weather. Sufficient rationale should be provided for all opinions proffered. 3. Readjudicate the appeals. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Lee 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.